Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (i) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the Borrowers, which list includes, with respect to each depository (A) the name of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent. (b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower. (c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Date, the Borrowers shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case in form and substance reasonably satisfactory to the Administrative Agent. (d) The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct. (e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA. (f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. (g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable. (h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable. (i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts. (j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA). (k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct. (l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable. (m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 2 contracts
Samples: Credit Agreement (Genesco Inc), Credit Agreement (Genesco Inc)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as Schedule 2.22(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository (Ai) the name and address of that depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository depository.
(b) Annexed hereto as Schedule 2.22(b) is a list describing all arrangements to which the “DDA List”), (ii) upon Borrower is a party with respect to the occurrence of an Event of Default at payment to the request Borrower of the proceeds of all credit card charges for sales by the Borrower.
(c) On or prior to the Closing Date, the Borrower shall (i) deliver to the Administrative Agent, Agent notifications executed on behalf of the Borrowers Borrower to each depository institution identified on the with which any DDA List is maintained in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iiiii) on or prior deliver to the Effective Date and periodically thereafter Administrative Agent notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with to each of the Borrowers’ major Borrower’s credit card clearinghouses and debit card processors of notice in form and substance reasonably satisfactory to the Administrative Agent.
, (beach, a “Credit Card Notification”), and (iii) Annexed hereto as enter into agency agreements with the banks maintaining the deposit accounts identified on Schedule 2.21(b2.22(c) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Datecollectively, the Borrowers “Blocked Accounts”), which agreements (the “Blocked Account Agreements”) shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case be in form and substance reasonably satisfactory to the Administrative Agent.
(d) . The DDA Notifications and Notifications, Credit Card Notifications and Blocked Account Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, require the sweep on each Business Day of all available cash receipts and other proceeds from the sale of Inventory and other assets, all collections of Accounts, all Net Proceeds, and all other cash payments (but excluding any and all cash proceeds received by the Borrower or disposition any of its Subsidiaries in respect of key-man life insurance policies, split-level insurance policies or similar policies maintained for the benefit of, and providing retirement or casualty benefits for, directors and officers of the Borrower, and the spouses, heirs and direct descendants of such Persons) received by the Borrower from any Person or from any source or on account of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges sale or other transaction or event (all such cash receipts and proceedscollections, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America Fleet (the “Bank of America FRF Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event. In that regard, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon to a Blocked Account or to the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled FRF Concentration Account, no less frequently than daily (unless and whether or not there is then an outstanding balance in the Commitments have been terminated hereunder and the Obligations have been paid in fullLoan Account) of (A) the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, ; and (B) the Borrowers shall also provide the Administrative Agent with an accounting proceeds of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Eventall credit card charges not otherwise provided for pursuant hereto. Further, whether or not any Obligations are then outstanding, the Borrowers Borrower shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, transfer to the Bank of America FRF Concentration Account Account, no less frequently than daily, of the then current entire ledger balance of each Controlled Blocked Account, net of such minimum balance, not to exceed $10,0002,500, as may be required to be maintained in the subject Controlled Blocked Account by the bank at which such Controlled Blocked Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) . In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event2.22, the Borrowers receive Borrower receives or otherwise have has dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)collections, such proceeds and collections shall be held in trust by the Borrowers Borrower for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ Borrower’s other funds or deposited in any account of the Borrower and shall, within two Business Days after receipt, either be deposited into a Blocked Account or the FRF Concentration Account, or dealt with in such other than fashion as the Borrower may be instructed by the Administrative Agent or the Canadian Agent, as applicable.
(md) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers The Borrower shall deliver accurately report to the Administrative Agent on each anniversary all amounts deposited in the Blocked Accounts (other than any such amounts deposited with Fleet) to ensure the proper transfer of funds as set forth above. If at any time other than the Effective Date (times set forth above any cash or at such other times as cash equivalents owned by the Borrower 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, the Administrative Agent shall require the Borrower to close such account and have all funds therein transferred to an account maintained by the Administrative Agent at Fleet and all future deposits made to a Blocked Account which is subject to a Blocked Account Agreement.
(e) The Borrower may reasonably requestclose DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to the execution and delivery to the Administrative Agent of appropriate DDA Notifications or Blocked Account Agreements (unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.22 and otherwise satisfactory to the Administrative Agent. Unless consented to in writing by the Administrative Agent, the Borrower may not maintain any bank accounts (other than accounts that in the aggregate have balances of $2,500 or less) or enter into any agreements with credit card processors other than the ones expressly contemplated herein.
(f) The Borrower may also maintain with the Administrative Agent at Fleet one or more disbursement accounts (the “Fleet Disbursement Accounts”) to be used by the Borrower for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder. The only Disbursement Accounts as of the Closing Date are those described in Schedule 2.22(f).
(g) The FRF Concentration Account is, a list and shall remain, under the sole dominion and control of all Account Debtors, which list includes, with respect to each Account Debtor the Collateral Agent. The Borrower acknowledges and agrees that (i) the nameBorrower has no right of withdrawal from the FRF Concentration Account, address, and telephone number of that Account Debtor; (ii) the account/reference numbers funds on deposit in the FRF Concentration Account shall continue to be collateral security for such Account Debtor; and (iii) to all of the extent known, a contact person at such Account Debtor (the “Account Debtor List”).Obligations and
Appears in 1 contract
Samples: Credit Agreement (Dri I Inc)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as SCHEDULE 2.21(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository (Ai) the name and address of that depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agentdepository.
(b) Annexed hereto as Schedule SCHEDULE 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such any Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Closing Date, the Borrowers shall enter into an Account Control Agreement (i) deliver to the Administrative Agent notifications executed on behalf of the Borrowers to each depository institution with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case which any DDA is maintained in form and substance reasonably satisfactory to the Administrative Agent.
, of the Administrative Agent's interest in such DDA (deach, a "DDA NOTIFICATION"), and (ii) deliver to the Administrative Agent notifications executed on behalf of the Borrowers to each of the Borrower's credit card clearinghouses and processors of notice in form satisfactory to the Administrative Agent, (each, a "CREDIT CARD NOTIFICATION"), and (iii) entered into agency agreements with the banks maintaining the deposit accounts identified on Schedule 2.21(c) (collectively, the "BLOCKED ACCOUNTS"), which agreements (the "BLOCKED ACCOUNT AGREEMENTS") shall be in form and substance satisfactory to the Administrative Agent. The DDA Notifications and Notifications, Credit Card Notifications and Blocked Account Agreements shall require, after the occurrence and during the continuance of a Default or Cash Dominion Control Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale of Inventory and other assets, all collections of Accounts, and all other cash payments received by the Borrowers from any Person or disposition from any source or on account of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges sale or other transaction or event (all such cash receipts and proceedscollections, “Cash Receipts”"CASH RECEIPTS"), to (x) a concentration account maintained by the Collateral Agent at Bank of America Fleet (the “Bank of America Concentration Account”"FRF CONCENTRATION ACCOUNT"), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require. In that regard, after the occurrence and during the continuance of a Default or Cash Dominion Control Event, the sweep on each Business Day of all Cash Receipts Borrowers shall cause the ACH or wire transfer to the Bank of America Concentration a Blocked Account or to the FRF Concentration Account, no less frequently than daily (and whether or not there is then an outstanding balance in the Loan Account) of (A) the then contents of each DDA, each such other account transfer to be net of any minimum balance, not to exceed $5,000.00, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained; and (B) the proceeds of all credit card charges not otherwise provided for pursuant hereto. Further, whether or not any Obligations are then outstanding, after the occurrence of a Default or Cash Control Event, the Borrowers shall cause the ACH or wire transfer to the FRF Concentration Account, no less frequently than daily, of the then entire ledger balance of each Blocked Account, net of such minimum balance, not to exceed $5,000.00, as may be required to be maintained in the subject Blocked Account by the bank at which such Blocked Account is maintained. In the event that, notwithstanding the provisions of 41 50 this Section 2.21, after the occurrence of a Default or Cash Control Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent may direct, and shall not be commingled with respect to any of the Canadian Borrower, to a Concentration Account established Borrowers' other funds or deposited in any account of any Borrower other than as instructed by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document Administrative Agent.
(d) The Borrowers shall accurately report to the contrary, the Administrative Agent or all amounts deposited in the Canadian Agent, Blocked Accounts to ensure the proper transfer of funds as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) set forth above. If at any time after other than the occurrence and during the continuance of a Cash Dominion Event, times set forth above any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered)account, or held or invested in any manner, otherwise than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required hereinAgreement, then the Administrative Agent may shall require the Borrowers to close such account and have all funds held in such account therein transferred to the Bank of America Concentration Account or such other Controlled Account as an account maintained by the Administrative Agent may direct, at Fleet and with respect to the Canadian Borrower, all future deposits made to a Concentration Blocked Account established by the Canadian Borrower or as the Canadian Agent may otherwise directwhich is subject to a Blocked Account Agreement.
(ge) The Borrowers may close DDAs or Controlled Blocked Accounts and/or open new DDAs or Controlled Blocked Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Blocked Account Control Agreements (unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.212.21 and otherwise satisfactory to the Administrative Agent. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not maintain any bank accounts or enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to other than the ones expressly contemplated herein.
(f) The Borrowers may also maintain with the Administrative Agent at Fleet one or more disbursement accounts (the Canadian Agent, "FLEET DISBURSEMENT ACCOUNTS") to be used by the Borrowers for disbursements and payments (including payroll) in the ordinary course of business or as applicableotherwise permitted hereunder. The only Disbursement Accounts as of the Closing Date are those described in SCHEDULE 2.21(f).
(hg) The Bank of America FRF Concentration Account and the Concentration Accounts established by the Canadian Borrower are is, and shall remain remain, under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, that (i) such Borrower has no right of withdrawal from the Bank of America FRF Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America FRF Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America FRF Concentration Account shall be applied as provided in Sections Section 2.22(a) or 7.4, as applicable).
(ih) So long as (i) no Default has occurred, and (ii) no Cash Dominion Control Event has occurred and is continuingoccurred, daily, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs DDA Accounts and the Controlled Blocked Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, . Effective upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, notice to the Bank of America Concentration Account of Lead Borrower from the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Collateral Agent may otherwise direct.
(lx) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Default or (y) in the event of a Cash Dominion EventControl Event (which notice may be given by telephone if promptly confirmed in writing), the Borrowers receive FRF Concentration Account will, without any further action on the part of any Borrower or otherwise have the Collateral Agent convert into a closed account under the exclusive dominion and control of any the Collateral Agent in which funds are held subject to the rights of the Collateral Agent hereunder. In such proceeds or collections (other than proceeds deposited event, all amounts in any Excluded DDA)the FRF Concentration Account from time to time may be applied to the Obligations in such order and manner as provided in Section 2.22 hereof, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agentmay, as applicablein its discretion, and but shall not be commingled with obligated to, transfer any of amounts in the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver FRF Concentration Account to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”)Fleet Disbursement Accounts.
Appears in 1 contract
Samples: Credit Agreement (Jo-Ann Stores Inc)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as Schedule 2.22(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository (Ai) the name and address of that depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository depository.
(b) Annexed hereto as Schedule 2.22(b) is a list describing all arrangements to which the “DDA List”), (ii) upon Borrower is a party with respect to the occurrence of an Event of Default at payment to the request Borrower of the Administrative Agentproceeds of all credit card charges for sales by the Borrower.
(c) On or prior to the Closing Date, the Borrower shall (i) deliver to the Collateral Agent notifications executed on behalf of the Borrowers Borrower to each depository institution identified on the with which any DDA List is maintained in form and substance reasonably satisfactory to the Administrative Collateral Agent, of the Administrative Collateral Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (ii) deliver to the Collateral Agent notifications to each of the Borrower’s credit card clearinghouses and processors of notice in form reasonably satisfactory to the Collateral Agent, (each, a “Credit Card Notification”), and (iii) enter into agency agreements with the banks maintaining the deposit accounts identified on or prior to Schedule 2.22(c) (collectively, the Effective Date and periodically thereafter notifications “Blocked Accounts”), which agreements (the “Credit Card NotificationsBlocked Account Agreements”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors shall be in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Date, the Borrowers shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Notifications, Credit Card Notifications and Blocked Account Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale of Inventory and other Collateral, all collections of Accounts, and all other cash payments received by the Borrower from any Person or disposition from any source or on account of any Collateral, including, without limitation, sale or other transaction or event relating to the proceeds of all credit card and debit card charges Collateral (all such cash receipts and proceedscollections, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America Fleet (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require. In that regard, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts Borrower shall cause the ACH or wire transfer to the Bank of America Concentration a Blocked Account or to the Concentration Account, no less frequently than daily (and whether or not there is then an outstanding balance in the Loan Account) of (A) the then contents of each DDA, each such other account transfer to be net of any minimum balance, not to exceed $2,500 (or such greater amount which is unintentionally not so transferred by the Borrower but which is to be transferred to a Blocked Account or the Concentration Account on the subsequent Business Day), as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained; and (B) the proceeds of all credit card charges not otherwise provided for pursuant hereto. Further, after the occurrence and during the continuance of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrower shall cause the ACH or wire transfer to the Concentration Account, no less frequently than daily, of the then entire ledger balance of each Blocked Account, net of such minimum balance, not to exceed $2,500, as may be required to be maintained in the subject Blocked Account by the bank at which such Blocked Account is maintained. In the event that, notwithstanding the provisions of this SECTION 2.22, after the occurrence and during the continuance of a Cash Dominion Event, the Borrower receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Borrower for the Administrative Agent and shall not be commingled with any of the Borrower’s other funds or deposited in any account of the Borrower and shall, within one (1) Business Day after receipt, either be deposited into a Blocked Account or the Concentration Account, or dealt with in such other fashion as the Borrower may direct, and with respect to the Canadian Borrower, to a Concentration Account established be instructed by the Canadian Administrative Agent.
(d) At the Administrative Agent’s request, the Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document shall accurately report to the contrary, the Administrative Agent or all amounts deposited in the Canadian Agent, Blocked Accounts to ensure the proper transfer of funds as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) set forth above. If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers Borrower are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered)account, or held or invested in any manner, otherwise than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required hereinAgreement, then the Administrative Agent may shall require the Borrowers Borrower to close such account and have all funds held in such account therein transferred to the Bank of America Concentration Account or such other Controlled Account as an account maintained by the Administrative Agent may direct, at Fleet and with respect to the Canadian Borrower, all future deposits made to a Concentration Blocked Account established by the Canadian Borrower or as the Canadian Agent may otherwise directwhich is subject to a Blocked Account Agreement.
(ge) The Borrowers Borrower may close DDAs or Controlled Blocked Accounts and/or open new DDAs or Controlled Blocked Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Blocked Account Control Agreements (unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.21SECTION 2.22 and otherwise reasonably satisfactory to the Administrative Agent. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers Borrower may not maintain any bank accounts (other than accounts that in the aggregate have balances of $2,500 or less) or enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to other than the ones expressly contemplated herein.
(f) The Borrower may also maintain with the Administrative Agent at Fleet or Bank of America one or more disbursement accounts (the Canadian Agent, “Disbursement Accounts”) to be used by the Borrower for disbursements and payments (including payroll) in the ordinary course of business or as applicableotherwise permitted hereunder. The only Disbursement Accounts as of the Closing Date are those described in Schedule 2.22(f).
(hg) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are is, and shall remain remain, under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each The Borrower acknowledges and agrees that, subject to the provisions of subparagraph that (i) below, (i) such the Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDASECTION 2.23(a).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 1 contract
Cash Receipts. (a) The Borrowers shall deliver Use commercially reasonable efforts to enter into as soon as possible, and in any event on or prior to the Administrative Agent date that occurs ninety (i90) on the days after theFirst Amendment Effective Date and thereafter annually (or at such times longer period following such date as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Eventagree in its reasonable discretion), a list of all present DDAs maintained by the Borrowers, which list includes, with respect to each depository (A) the name of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Date, the Borrowers shall enter into an effective account control agreement (a “Deposit Account Control Agreement Agreement”) with the Controlled each Approved Account Banks for the Concentration Accounts and the Investment AccountsBank, in each case in form and substance reasonably satisfactory to the Administrative Agent, with respect to each Deposit Account in which material amounts (as reasonably determined by the Administrative Agent) of funds of any of the Loan Parties are concentrated (including those existing as of the First Amendment Effective Date and listed on Schedule 8.12 attached hereto, andbut excluding, for the avoidance of doubt, xxxxx cash, payroll, trust and tax withholding accounts) any Excluded Account (collectively, all Deposit Accounts required to become subject to a Deposit Account Control Agreement being referred to as the “Material Bank Accounts”).
(db) The DDA Notifications Each Loan Party shall (i) instruct each Account Debtor or other Person obligated to make a payment to any of them under any Account to make payment, or to continue to make payment, to an Approved Deposit Account, (ii) deposit in (A) a Store Account all Cash Receipts received in the Stores, and (B) an Approved Deposit Account promptly upon receipt all other Cash Receipts (as defined below) received by any Loan Party from any other Person, (iii) deliver to the Administrative Agent, onprior to the First Amendment Effective Date, Credit Card Notifications shall require, after (it being agreed and acknowledged that as of the occurrence First Amendment Effective Date the Administrative Agent has received such Credit Card Notifications) and during the continuance of (iv) instruct each depository institution for a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, Deposit Account (including, without limitation, Store Accounts) to cause all amounts on deposit and available at the proceeds close of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred Deposit Account to be swept to one of the Bank of America Concentration Account or Loan Parties’ Approved Deposit Accounts no less frequently than on a daily basis, such other Controlled Account as the Administrative Agent may direct, and with respect instructions to the Canadian Borrower, be irrevocable unless otherwise agreed to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or Agent; provided that the Canadian AgentLoan Parties shall not be required to sweep, as applicableand may maintain, the Borrowers may an amount not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower, (ii) the funds on deposit exceed $1,000,0002,000,000 in the Bank of America Concentration Account shall continue to be collateral security for aggregate in all of the Obligations (including the Canadian Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) Store Accounts. So long as no Cash Dominion Event has occurred and Period is continuing, the Borrowers Loan Parties may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs Approved Deposit Accounts, in each case subject to the other provisions of this Agreement and the Controlled Accountsother Loan Documents.
(jc) After Each Credit Card Notification and Deposit Account Control Agreement shall require (without further consent of the Loan Parties), and the Loan Parties shall cause, after the occurrence and during the continuation continuance of a Cash Dominion EventPeriod and subject to the Intercreditor Agreement, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless and whether or not there are then any outstanding Obligations) to the Commitments have been terminated hereunder concentration account maintained at Bank of America (or at another financial institution acceptable to the Administrative Agent in its sole discretion) by and in the Obligations have been paid in full) name of the Borrower (the “Concentration Account”), of all cash receipts and collections, including, without limitation, the following (collectively, the “Cash Receipts”):
(i) all available cash receipts from the sale of Inventory and other Collateral or casualty insurance proceeds arising from any of the foregoing;
(ii) all proceeds of collections of Accounts (including, without limitation, Credit Card Receivables);
(iii) the then current contents of each such DDA Deposit Account (other than including, without limitation, any Excluded DDA), each such transfer Approved Deposit Account subject to be a Deposit Account Control Agreement and any Store Account) (net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, balance as may be required to be maintained kept in the subject DDA Deposit Account by the bank institution at which such DDA Deposit Account is maintained, );
(iv) the cash proceeds of all credit card charges; and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting
(v) all cash proceeds of the contents of each DDA (any other than any Excluded DDA)Collateral.
(kd) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America The Concentration Account shall at all times be under the sole dominion and control of the then current entire ledger balance Collateral Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of each Controlled withdrawal from the Concentration Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained (ii) the funds on deposit in the subject Controlled Concentration Account by shall at all times be collateral security for all of the bank at which such Controlled Obligations, and (iii) the funds on deposit in the Concentration Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or applied as provided in this Agreement and in the Canadian Agent may otherwise direct.
(l) Intercreditor Agreement. In the event that, notwithstanding the provisions of this Section 2.218.12, after the occurrence of a Cash Dominion Event, the Borrowers receive any Loan Party receives or otherwise have has dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)during a Cash Dominion Period, such proceeds and collections shall be held in trust by the Borrowers such Loan Party for the Administrative Agent or the Canadian Collateral Agent, as applicable, and shall not be commingled with any of the Borrowers’ such Loan Party’s other funds or deposited in any account of Borrower such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such other than fashion as such Loan Party may be instructed by the Administrative Agent or Agent. Any amounts received in the Canadian Concentration Account at any time when all of the Obligations have been indefeasibly paid in full shall be remitted to the operating account of the Loan Parties maintained with the Administrative Agent, as applicable.
(me) After From and after the occurrence First Amendment Effective Date, except as otherwise expressly provided in the Loan Documents, each Loan Party shall maintain all Material Bank Accounts with the Administrative Agent or another financial institution reasonably acceptable to the Administrative Agent that has executed and during the continuation delivered such Deposit Account Control Agreements in respect of each such Material Bank Account.
(f) The Administrative Agent shall promptly (but in any event shall use its commercially reasonable efforts within one (1) Business Day to) furnish written notice to each Approved Account Bank at which any Approved Deposit Account which is subject to a Deposit Account Control Agreement is maintained) of any termination of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”)Period.
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Cash Receipts. (aAnnexed hereto as Schedule 2.23(a) The Borrowers shall deliver to the Administrative Agent (i) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository (Ai) the name and address of that depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository (depository. Annexed hereto as Schedule 2.23(b) is a list describing all arrangements to which the “DDA List”), (ii) upon Borrower is a party with respect to the occurrence of an Event of Default at payment to the request Borrower of the proceeds of all credit card charges for sales by the Borrower. The Borrower shall (i) deliver to the Administrative Agent, Agent notifications executed on behalf of the Borrowers Borrower to each depository institution identified on the with which any DDA List is maintained in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s 's interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “"DDA Notification”") within thirty (30) days after the Closing Date, and (ii) deliver to the Administrative Agent on the Closing Date notifications to each of the Borrower's credit card clearinghouses and processors of notice in form satisfactory to the Administrative Agent, (each, a "Credit Card Notification"), and (iii) within thirty (30) days after the Closing Date, enter into agency agreements with the banks maintaining the deposit accounts identified on or prior to Schedule 2.23(c) (collectively, the Effective Date and periodically thereafter notifications "Blocked Accounts"), which agreements (the “Credit Card Notifications”"Blocked Account Agreements") executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors shall be in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Date, the Borrowers shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Notifications, Credit Card Notifications and Blocked Account Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale of Inventory and other assets, all collections of Accounts, all Net Proceeds, and all other cash payments received by the Borrower from any Person or disposition from any source or on account of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges sale or other transaction or event (all such cash receipts and proceedscollections, “"Cash Receipts”"), to (x) a concentration account maintained by the Collateral Agent at Bank of America Fleet (the “Bank of America "FRF Concentration Account”"), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require. In that regard, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts Borrower shall cause the ACH or wire transfer to the Bank of America Concentration a Blocked Account or to the FRF Concentration Account, no less frequently than daily (and whether or not there is then an outstanding balance in the Loan Account) of (A) the then contents of each DDA, each such other account transfer to be net of any minimum balance, not to exceed $5,000, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained; and (B) the proceeds of all credit card charges not otherwise provided for pursuant hereto. Further, after the occurrence and during the continuance of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrower shall cause the ACH or wire transfer to the FRF Concentration Account, no less frequently than daily, of the then entire ledger balance of each Blocked Account, net of such minimum balance, not to exceed $5,000, as may be required to be maintained in the subject Blocked Account by the bank at which such Blocked Account is maintained. In the event that, notwithstanding the provisions of this Section 2.23, after the occurrence and during the continuance of a Cash Dominion Event, the Borrower receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Borrower for the Administrative Agent and shall not be commingled with any of the Borrower's other funds or deposited in any account of the Borrower and shall, within one (1) Business Day after receipt, either be deposited into a Blocked Account or the FRF Concentration Account, or dealt with in such other fashion as the Borrower may direct, and with respect to the Canadian Borrower, to a Concentration Account established be instructed by the Canadian Borrower or as the Canadian Agent may otherwise directAdministrative Agent. Notwithstanding any provision For purposes of this Agreement or any other Loan Document to the contraryclarity, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless until a Cash Dominion Event has occurred and has not been discontinued, the Borrower shall have occurred and be continuing and will withdraw such notice of exclusive full control and relinquish such control at such time dominion over, and may use, any and all cash and Cash Receipts as a Cash Dominion Event is no longer the Borrower may determine in effect, if requested in writing, by the Lead Borrowerits sole discretion and shall not be required to deposit or transfer, or (ii) cause to be deposited or transferred, any Excluded DDA.
(f) cash or Cash Receipts into the FRF Concentration Account. The Borrower shall accurately report to the Administrative Agent all amounts deposited in the Blocked Accounts to ensure the proper transfer of funds as set forth above. If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers Borrower are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered)account, or held or invested in any manner, otherwise than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required hereinAgreement, then the Administrative Agent may shall require the Borrowers Borrower to close such account and have all funds held in such account therein transferred to the Bank of America Concentration Account or such other Controlled Account as an account maintained by the Administrative Agent may direct, at Fleet and with respect to the Canadian Borrower, all future deposits made to a Concentration Blocked Account established by the Canadian which is subject to a Blocked Account Agreement. The Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery upon prior written notice to the Administrative Agent or and may open new DDAs by providing the Canadian AgentAdministrative Agent written notice thereof, as applicable, together with a copy of the appropriate DDA Notifications or Account Control Agreements Notification for the new depository consistent with the provisions of this Section 2.212.23 and otherwise satisfactory to the Administrative Agent. Unless consented The Borrower may close a Blocked Account upon prior written notice to the Administrative Agent, together with written confirmation that the funds in writing the closed Blocked Account have been, or are then being, transferred to another Blocked Account and may open new Blocked Accounts by providing the Administrative Agent or written notice thereof, together with a Blocked Account Agreement with the Canadian Agent, as applicable, new depository consistent with the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed provisions of this Section 2.23 and delivered otherwise satisfactory to the Administrative Agent. The Borrower may also maintain with the Administrative Agent at Fleet one or more disbursement accounts (the Canadian Agent, "Fleet Disbursement Accounts") to be used by the Borrower for disbursements and payments (including payroll) in the ordinary course of business or as applicable.
(h) otherwise permitted hereunder. The Bank only Disbursement Accounts as of America the Closing Date are those described in Schedule 2.23(f). The FRF Concentration Account and the Concentration Accounts established by the Canadian Borrower are is, and shall remain remain, under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each The Borrower acknowledges and agrees that, subject to the provisions of subparagraph that (i) below, (i) such the Borrower has no right of withdrawal from the Bank of America FRF Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America FRF Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America FRF Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDASection 2.24(a).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 1 contract
Samples: Credit Agreement (Stage Stores Inc)
Cash Receipts. (a) The Borrowers shall deliver Schedule 4.16 lists as of the Closing Date (after giving effect to the Administrative Agent (iTransactions) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the Borrowers, which list includes, with respect to each depository where a DDA or Concentration Account is located (Ai) the name and address of that such depository; , (Bii) the account number(s) maintained with such depository; depository and (Ciii) to the extent known, a contact person at such depository depository.
(the b) Each Loan Party that is a U.S. Borrower or U.S. Subsidiary Guarantor shall (i) enter into a concentration account control agreement (each, a “DDA ListConcentration Account Agreement”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers with respect to each depository institution identified on the DDA List Concentration Account maintained by such Loan Party, in form and substance reasonably satisfactory to the Administrative Agent, and instruct each depository institution for a DDA of such Loan Party to cause all amounts on deposit in excess of the Administrative Agent’s interest Retained Amount and available at the close of each Business Day in such DDA as described more fully in Section 2.21(dto be swept to a Concentration Account no less frequently than on a daily basis, (ii) either (A) instruct all Account Debtors of such Loan Party that remit payments of Accounts of such Account Debtors regularly by check pursuant to arrangements with such Loan Party to remit all such payments to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable DDA or Concentration Account, which remittances shall be collected by the applicable bank and substantially deposited in the form applicable DDA or Concentration Account, (B) cause the checks of Exhibit G any such Account Debtor in payment of any Account to be deposited in the applicable DDA or Concentration Account within two Business Days after such check is received by such Loan Party, or (eachC) cause amounts constituting payments on Accounts that are deposited in other accounts (including any accounts where they are commingled with other funds), to the extent that the balance in any such other account exceeds the Retained Amount, to be swept within one Business Day of becoming available to a “DDA Notification”)Concentration Account, and (iii) on or prior deliver to the Effective Date and periodically thereafter notifications (the “Administrative Agent Credit Card Notifications”) Notifications executed on behalf of the Borrowers with each of the Borrowers’ major credit card such Loan Party and debit card processors delivered to each applicable Credit Card Issuer and Credit Card Processor, in form and substance reasonably satisfactory to the Administrative Agent.
; provided, however, that the U.S. Loan Parties shall not be required to comply with the foregoing requirements of this clause (b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to any Foreign DDA so long as none of the ABL Priority Collateral located in such Foreign DDA is included in the calculation of the Borrowing Base. All amounts received by a U.S. Borrower or a U.S. Subsidiary Guarantor in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash (other than (x) any such amount to be deposited in Excluded Accounts and (y) Accounts or payment thereof excluded from the Collateral pursuant to any Borrower of the Security Document, including Excluded Assets) be deposited into a DDA or a Concentration Account. Each Loan Party agrees that it will not cause proceeds of all credit card and debit card charges for sales by such BorrowerDDAs to be directed other than as set forth in clause (ii) of this paragraph (b) (in the case of Foreign DDAs, to the extent the requirements of clause (ii) of this paragraph (b) are applicable thereto), unless such proceeds are swept within one Business Day of becoming available to a Concentration Account.
(c) Annexed hereto as Schedule 2.21(cEach Canadian Loan Party shall (i) is enter into a list describing all concentration account control agreement (each, a “Canadian Concentration Accounts and Investment Accounts Account Agreement”) with respect to each Concentration Account maintained by the Borrowers. On or prior to the Effective Date, the Borrowers shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment Accountsa Canadian Loan Party, in each case in form and substance reasonably satisfactory to the Administrative Agent, and instruct each depository institution for a DDA of such Canadian Loan Party to cause all amounts on deposit in excess of the Retained Amount and available at the close of each Business Day in such DDA to be swept to a Concentration Account of a Canadian Loan Party no less frequently than on a daily basis, (ii) either (A) instruct all Account Debtors of such Canadian Loan Party that remit payments of Accounts of such Account Debtors regularly by check pursuant to arrangements with such Canadian Loan Party to remit all such payments to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable DDA or Concentration Account, which remittances shall be collected by the applicable bank and deposited in the applicable DDA or Concentration Account, (B) cause the checks of any such Account Debtor in payment of any Account to be deposited in the applicable DDA or Concentration Account within two Business Days after such check is received by such Canadian Loan Party, or (C) cause amounts constituting payments on Accounts that are deposited in other accounts (including any accounts where they are commingled with other funds), to the extent that the balance in any such other account exceeds the Retained Amount, to be swept within one Business Day of becoming available to a Concentration Account of such Canadian Loan Party, and (iii) deliver to the Administrative Agent Credit Card Notifications executed on behalf of each such Canadian Loan Party and delivered to each applicable Credit Card Issuer and Credit Card Processor, in form reasonably satisfactory to the Administrative Agent; provided, however, that the Canadian Loan Parties shall not be required to comply with the foregoing requirements of this clause (c) with respect to any Foreign DDA so long as none of the ABL Priority Collateral located in such Foreign DDA is included in the calculation of the Borrowing Base. All amounts received by a Canadian Loan Party in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash (other than (x) any such amount to be deposited in Excluded Accounts and (y) Accounts or payments thereof excluded from the Collateral pursuant to any Security Document, including Excluded Assets) be deposited into a DDA or Concentration Account of a Canadian Loan Party. Each Loan Party agrees that it will not cause proceeds of such DDAs to be directed other than as set forth in clause (ii) of this paragraph (c) (in the case of Foreign DDAs, to the extent the requirements of clause (ii) of this paragraph (c) are applicable thereto), unless such proceeds are swept within one Business Day of becoming available to a Concentration Account of a Canadian Loan Party.
(d) The DDA Notifications and Credit Card Notifications (i) Each Concentration Account Agreement shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day Period and following delivery of all available cash receipts and other proceeds notice of commencement thereof from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Parent Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily once per Business Day (unless the U.S. Facility Commitments have been terminated and the monetary obligations then due and owing hereunder and under the Obligations other Loan Documents have been paid in full) full and all U.S. Facility Letters of the then current contents of each such DDA Credit have either been terminated or expired (other than any Excluded DDA), each such transfer unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s)), as applicableof all available cash balances and cash receipts, instruction, to the Bank of America Concentration Account of including the then current contents or then entire available ledger balance of each Controlled AccountConcentration Account subject to such Concentration Account Agreement, net of such minimum balance, not to exceed $10,000if any, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Concentration Account is maintained; provided that amounts in Controlled Accounts established maintained to an account maintained by the Canadian Borrower shall be delivered only to a concentration account Administrative Agent at Bank of America-Canada Branch , N.A. (or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions another bank of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed recognized standing reasonably selected by the Administrative Agent or with the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary reasonable consent of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (iBorrower Representative) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor ListU.S. Core Concentration Account”). Each Loan Party agrees that it will not cause proceeds of any Concentration Account subject to a Concentration Account Agreement to be otherwise redirected.
Appears in 1 contract
Samples: Abl Credit Agreement (Veritiv Corp)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as Schedule 2.22(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository (Ai) the name and address of that depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agentdepository.
(b) Annexed hereto as Schedule 2.21(b2.22(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any a Borrower of the proceeds of all credit card and debit card charges for sales by such a Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Closing Date, the Lead Borrower shall (i) deliver to the Administrative Agent notifications executed on behalf of the Borrowers shall enter into an Account Control Agreement to each depository institution with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case which any DDA is maintained in form and substance reasonably satisfactory to the Administrative Agent.
, of the Administrative Agent’s interest in such DDA (deach, a “DDA Notification”), such DDA Notifications to be held in escrow by the Administrative Agent until the occurrence of a Cash Dominion Event, at which time the Administrative Agent may, in its discretion, forward such DDA Notifications to the applicable institutions, and (ii) deliver to the Administrative Agent agreements executed with each of each Borrower’s credit card clearinghouses and processors in form satisfactory to the Administrative Agent, (each, a “Credit Card Agreement”), and (iii) enter into agency agreements with the banks maintaining the deposit accounts identified on Schedule 2.22(c) (collectively, the “Blocked Accounts”), which agreements (the “Blocked Account Agreements”) shall be in form and substance satisfactory to the Administrative Agent. The DDA Notifications and Notifications, Credit Card Notifications Agreements and Blocked Account Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale of Inventory and other assets, all collections of Accounts, and all other cash payments received by any Borrower from any Person or disposition from any source or on account of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges sale or other transaction or event (all such cash receipts and proceedscollections, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America Fleet (the “Bank of America FRG Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require. In that regard, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon to a Blocked Account or to the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled FRG Concentration Account, no less frequently than daily (unless and whether or not there is then an outstanding balance in the Commitments have been terminated hereunder and the Obligations have been paid in fullLoan Account) of (A) the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained; and (B) the proceeds of all credit card charges not otherwise provided for pursuant hereto. Further, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After after the occurrence and during the continuation continuance of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, transfer to the Bank of America FRG Concentration Account Account, no less frequently than daily, of the then current entire ledger balance of each Controlled Blocked Account, net of such minimum balance, not to exceed $10,0002,500, as may be required to be maintained in the subject Controlled Blocked Account by the bank at which such Controlled Blocked Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) . In the event that, notwithstanding the provisions of this Section 2.212.22, after the occurrence of a Cash Dominion Event, the Borrowers receive any Borrower receives or otherwise have has dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)collections, such proceeds and collections shall be held in trust by the Borrowers such Borrower for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ any Borrower’s other funds or deposited in any account of any Borrower and shall either be promptly deposited into a Blocked Account or the FRG Concentration Account, or dealt with in such other than fashion as the Lead Borrower may be instructed by the Administrative Agent or the Canadian Agent, as applicable.
(md) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers The Lead Borrower shall deliver accurately report to the Administrative Agent on each anniversary all amounts deposited in the Blocked Accounts (other than any such amounts deposited with Fleet) to ensure the proper transfer of funds as set forth above. If at any time other than the Effective Date (times set forth above any cash or at such other times as cash equivalents owned by any Borrower 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, the Administrative Agent shall require such Borrower to close such account and have all funds therein transferred to an account maintained by the Administrative Agent at Fleet and all future deposits made to a Blocked Account which is subject to a Blocked Account Agreement.
(e) The Borrowers may reasonably request)close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) subject to the extent known, a contact person at such execution and delivery to the Administrative Agent of appropriate DDA Notifications or Blocked Account Debtor Agreements (unless expressly waived by the “Account Debtor List”).Administrative Agent) consistent with the provisions of this
Appears in 1 contract
Samples: Credit Agreement (Wet Seal Inc)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as Schedule 2.22(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository (Ai) the name and address of that depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agentdepository.
(b) Annexed hereto as Schedule 2.21(b2.22(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such any Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Closing Date, the Borrowers shall enter into an Account Control Agreement have (i) delivered to the Administrative Agent notifications executed on behalf of the Borrowers to each depository institution with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case which any DDA is maintained in form and substance reasonably satisfactory to the Administrative Agent.
, of the Administrative Agent's interest in such DDA (deach, a "DDA Notification"), and (ii) delivered to the Administrative Agent notifications executed on behalf of the Borrowers to each of the Borrower's credit card clearinghouses and processors of notice in form satisfactory to the Administrative Agent, (each, a "Credit Card Notification"), and (iii) entered into agency agreements with the banks maintaining the deposit accounts identified on Schedule 2.22(c) (collectively, the "Blocked Accounts"), which agreements (the "Blocked Account Agreements") shall be in form and substance satisfactory to the Administrative Agent. The DDA Notifications and Notifications, Credit Card Notifications and Blocked Account Agreements shall require, after the occurrence and during the continuance of unless a Cash Dominion EventRelease Event has occurred and is continuing, the sweep on each Business Day of all available cash receipts and other proceeds from the sale of Inventory and other assets, all collections of Accounts, and all other cash payments received by the Borrowers from any Person or disposition from any source or on account of any Collateral, sale or other transaction or event (including, without limitation, the any casualty and condemnation proceeds of all credit card and debit card charges proceeds from any equity issuances) (all such cash receipts and proceedscollections, “"Cash Receipts”"), to (x) a concentration account maintained by the Collateral Agent Agents at Bank of America (the “Bank of America "FRG Concentration Account”"). In that regard, or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Release Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon to a Blocked Account or to the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled FRG Concentration Account, no less frequently than daily (unless and whether or not there is then an outstanding balance in the Commitments have been terminated hereunder and the Obligations have been paid in fullLoan Account) of (A) the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed (1) $20,000 with respect to the Borrowers' xxxxx cash accounts described on Schedule 2.22(a) as "Regional Checking Accounts" and (2) $5,000 with respect to any DDA other DDA; and (other B) the proceeds of all credit card charges not otherwise provided for pursuant hereto. Further, whether or not any Obligations are then outstanding, unless a Cash Dominion Release Event has occurred and is continuing, the Borrowers shall cause the ACH or wire transfer to the FRG Concentration Account, no less frequently than any Excluded DDA) daily, of the then entire ledger balance of each Blocked Account, net of such minimum balance, not to exceed $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Blocked Account by the bank at which such Controlled Blocked Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) . In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion EventSECTION 2.22, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)collections, unless a Cash Dominion Release Event has occurred and is continuing, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ ' other funds or deposited in any account of any Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(md) After The Borrowers shall accurately report to the occurrence and Administrative Agent all amounts deposited in the Blocked Accounts to ensure the proper transfer of funds as set forth above. If at any time, other than during the continuation continuance of a Cash Dominion Release Event, any cash or cash equivalents owned by the Borrowers 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, the Administrative Agent shall require the Borrowers to close such account and have all funds therein transferred to an account maintained by the Administrative Agent at Bank of America and all future deposits made to a Blocked Account which is subject to a Blocked Account Agreement. Without limiting the foregoing, unless a Cash Dominion Release Event has occurred and is continuing, the Borrowers shall deliver cause all proceeds from the sale, transfer or other disposition of any of their assets, all casualty and condemnation proceeds, all proceeds from equity issuances and the incurrence of Indebtedness for borrowed money (excluding Indebtedness permitted under SECTION 6.01(a) (other than SECTION 6.01(a)(x)) to be deposited into a Blocked Account as and when received.
(e) The Borrowers may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to the execution and delivery to the Administrative Agent on each anniversary of appropriate DDA Notifications or Blocked Account Agreements (unless expressly waived by the Administrative Agent) consistent with the provisions of this SECTION 2.22 and otherwise satisfactory to the Administrative Agent. Unless consented to in writing by the Administrative Agent, the Borrowers may not maintain any bank accounts or enter into any agreements with credit card processors other than the ones expressly contemplated herein.
(f) The Borrowers may also maintain with the Administrative Agent at Bank of America one or more disbursement accounts (the "Bank of America 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. The only Disbursement Accounts as of the Effective Date are those described in Schedule 2.22(f).
(or at such other times as g) The FRG Concentration Account is, and shall remain, under the Administrative Agent may reasonably request), a list sole dominion and control of all Account Debtors, which list includes, with respect to each Account Debtor the Collateral Agents. Each Borrower acknowledges and agrees that (i) such Borrower has no right of withdrawal from the nameFRG Concentration Account, address, and telephone number of that Account Debtor; (ii) the account/reference numbers funds on deposit in the FRG Concentration Account shall continue to be collateral security for such Account Debtor; all of the Obligations and (iii) to the extent known, a contact person at such funds on deposit in the FRG Concentration Account Debtor (the “Account Debtor List”shall be applied as provided in SECTION 2.23(a).
Appears in 1 contract
Samples: Credit Agreement (Tweeter Home Entertainment Group Inc)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iSchedule 4.16(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the Borrowers, which list includes, lists with respect to each depository where a DDA is located (Ai) the name and address of that such depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository depository.
(b) Each Loan Party that is a U.S. Borrower or U.S. Subsidiary Guarantor shall (i) enter into concentration account control agreements (the “DDA ListConcentration Account Agreements”) covering accounts maintained by the Borrower at JPMorgan, SunTrust Banks, Inc., Xxxxx Fargo & Company, Bank of America, N.A. and/or Wachovia Bank (or such other banks that are reasonably acceptable to the Administrative Agent) (the “Concentration Accounts”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, with JPMorgan, SunTrust Banks, Inc., Xxxxx Fargo & Company, Bank of the Administrative Agent’s interest in America, N.A. and/or Wachovia Bank (or such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance other banks that are reasonably satisfactory acceptable to the Administrative Agent.
) and (bii) Annexed hereto as Schedule 2.21(beither (A) is a list describing instruct all Account Debtors of such Loan Party that remit payments of Accounts of such Account Debtors regularly by check pursuant to arrangements with such Loan Party to which any Borrower is a party remit all such payments to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable DDA or Concentration Account, which remittances shall be collected by the applicable bank and deposited in the applicable DDA or Concentration Account, to be swept within 1 Business Day of becoming available to a Concentration Account, (B) cause the checks of any such Account Debtor in payment of any Account to be deposited in the applicable DDA or Concentration Account within two Business Days after such check is received by such Loan Party, to be swept within 1 Business Day of becoming available to a Concentration Account or (C) cause amounts constituting payments on Accounts that are deposited in other accounts (including any accounts where they are commingled with other funds), to the extent that the balance in any such other account exceeds $25,000, to be swept within 1 Business Day of becoming available to a Concentration Account; provided that the aggregate balance of all such other accounts that are not Concentration Accounts and are not so swept shall at no time exceed, when taken together with the accounts referred to in the proviso in subsection 4.16(c)(ii)(C) below, $1,000,000. All amounts received by a U.S. Borrower or a U.S. Subsidiary Guarantor in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash (other than any such amount or cash excluded from the Collateral pursuant to any Borrower Security Document) be deposited into a DDA or Concentration Account, to be swept within 1 Business Day of the becoming available to a Concentration Account. Each Loan Party agrees that it will not cause proceeds of all credit card and debit card charges for sales by such BorrowerDDAs to be directed other than as set forth in this clause (b)(ii), unless such proceeds are swept within 1 Business Day of becoming available to a Concentration Account.
(c) Annexed hereto as Schedule 2.21(cEach Canadian Loan Party shall (i) is a list describing all enter into concentration account control agreements (the “Canadian Concentration Accounts and Investment Accounts Account Agreements”) covering accounts maintained by the Borrowers. On Parent Borrower (or prior a Canadian Borrower designated by the Parent Borrower) at Scotiabank, Bank of Montreal and/or The Toronto-Dominion Bank (or such other banks that are reasonably acceptable to the Effective Date, Canadian Agent) (the Borrowers shall enter into an Account Control Agreement with the Controlled Account Banks for the “Canadian Concentration Accounts and the Investment Accounts”), in each case in form and substance reasonably satisfactory to the Administrative Canadian Agent, with Scotiabank, Bank of Montreal and/or The Toronto-Dominion Bank (or such other banks that are reasonably acceptable to the Canadian Agent), and (ii) either (A) instruct all Account Debtors of such Canadian Loan Party that remit payments of Accounts of such Account Debtors regularly by check pursuant to arrangements with such Canadian Loan Party to remit all such payments to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable DDA or Canadian Concentration Account, which remittances shall be collected by the applicable bank and deposited in the applicable DDA or Canadian Concentration Account, to be swept within 1 Business Day of becoming available to a Canadian Concentration Account, (B) cause the checks of any such Account Debtor in payment of any Account to be deposited in the applicable DDA or Canadian Concentration Account within two Business Days after such check is received by such Canadian Loan Party, to be swept within 1 Business Day of becoming available to a Canadian Concentration Account or (C) cause amounts constituting payments on Accounts that are deposited in other accounts (including any accounts where they are commingled with other funds), to the extent that the balance in any such other account exceeds $25,000, to be swept within 1 Business Day of becoming available to a Canadian Concentration Account; provided that the aggregate balance of all such other accounts that are not Canadian Concentration Accounts and are not so swept shall at no time exceed, when taken together with the accounts referred to in the proviso in subsection 4.16(b)(ii)(C) above, $1,000,000. All amounts received by a Canadian Loan Party in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash (other than any such amount or cash excluded from the Collateral pursuant to any Security Document) be deposited into a DDA or Canadian Concentration Account, to be swept within 1 Business Day of becoming available to a Canadian Concentration Account. Each Loan Party agrees that it will not cause proceeds of such DDAs to be directed other than as set forth in this clause (c)(ii), unless such proceeds are swept within 1 Business Day of becoming available to a Canadian Concentration Account.
(d) [Reserved]
(e) The DDA Notifications and Credit Card Notifications Concentration Accounts shall require, after at all times upon the occurrence and during the continuance of a Cash Dominion Event, an Event of Default of the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”type described in subsection 9(a), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Parent Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been deliveredsubsection 9(f), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain Liquidity Event be under the sole dominion and control of the Collateral Agent or the Canadian Administrative Agent, as applicable. Each Borrower Loan Party hereby acknowledges and agrees thatthat upon the occurrence and during the continuance of an Event of Default of the type described in subsection 9(a), subject or with respect to the provisions of subparagraph Parent Borrower, subsection 9(f), or a Liquidity Event (i) below, (ix) such Borrower Loan Party has no right of withdrawal from the Bank of America a Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (iiy) the funds on deposit in the Bank of America a Concentration 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 (including the Canadian Liabilities), (iiiz) the funds on deposit in a Concentration Account shall be applied as provided in subsection 10.17. In the event that, notwithstanding the provisions of this subsection 4.16, any Loan Party receives or otherwise has dominion and control of any cash proceeds or collections of Inventory constituting Collateral (which proceeds constitute Collateral) required to be transferred to a Concentration Accounts established Account pursuant to subsection 4.16(b), such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall promptly be deposited into a Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.
(f) The Canadian Borrower Concentration Account shall at all times upon the occurrence and during the continuance of an Event of Default of the type described in subsection 9(a), or with respect to the Parent Borrower, subsection 9(f), or a Liquidity Event be under the sole dominion and control of the Canadian Agent. Each Canadian Loan Party hereby acknowledges and agrees that upon the occurrence and during the continuance of an Event of Default of the type described in subsection 9(a), or with respect to the Parent Borrower, subsection 9(f), or a Liquidity Event (x) such Canadian Loan Party has no right of withdrawal from a Canadian Concentration Account, (y) the funds on deposit in a Canadian Concentration Account shall at all times continue to be collateral security for all of the obligations of the Canadian LiabilitiesLoan Parties hereunder and under the other Loan Documents, and (ivz) the funds on deposit in the Bank of America Canadian Concentration Account Accounts shall be applied as provided in Sections 2.22(asubsection 10.17. In the event that, notwithstanding the provisions of this subsection 4.16, any Canadian Loan Party receives or otherwise has dominion and control of any cash proceeds or collections of Inventory constituting Collateral (which proceeds constitute Collateral) required to be transferred to a Canadian Concentration Account pursuant to subsection 4.16(c), such proceeds and collections shall be held in trust by such Canadian Loan Party for the Canadian Agent, shall not be commingled with any of such Loan Party’s other funds or 7.4, deposited in any account of such Canadian Loan Party and shall promptly be deposited in a Canadian Concentration Account or dealt with in such other fashion as applicablesuch Canadian Loan Party may be instructed by the Canadian Agent.
(ig) So long as (i) no Cash Dominion Event of Default of the type described in subsection (9)(a), or with respect to the Parent Borrower, subsection (9)(f), has occurred and is continuing, and (ii) no Liquidity Event has occurred and is continuing, the Borrowers Loan Parties may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs DDAs, the Concentration Accounts and the Controlled Canadian Concentration Accounts.
(jh) After Any amounts held or received in a Concentration Account or a Canadian Concentration Account (including all interest and other earnings with respect hereto, if any) at any time (x) when all of the occurrence obligations hereunder and under the other Loan Documents have been satisfied or (y) no Events of Default of the type described in subsection 9(a), or with respect to the Parent Borrower, subsection 9(f), and no Liquidity Event exists or any such Events of Default have been cured, or Liquidity Event ceases to exist, shall (subject in the case of clause (x) to the provisions of the Intercreditor Agreement) be remitted to the operating account of the applicable Borrower.
(i) Notwithstanding anything herein to the contrary, the Loan Parties shall be deemed to be in compliance with the requirements set forth in this subsection 4.16 during the continuation of a Cash Dominion Event, initial ninety (90) day period commencing on the Borrowers shall cause Closing Date to the ACH extent that the arrangements described above are established and effective not later than the date that is ninety (90) days following the Closing Date or wire transfer to, upon such later date as the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transferits sole discretion, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA)may agree.
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 1 contract
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as SCHEDULE 2.21(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository (Ai) the name and address of that depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agentdepository.
(b) Annexed hereto as Schedule SCHEDULE 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such any Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Closing Date, the Borrowers shall enter into an Account Control Agreement (i) deliver to the Administrative Agent notifications executed on behalf of the Borrowers to each depository institution with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case which any DDA is maintained in form and substance reasonably satisfactory to the Administrative Agent.
, of the Administrative Agent's interest in such DDA (deach, a "DDA NOTIFICATION"), and (ii) deliver to the Administrative Agent notifications executed on behalf of the Borrowers to each of the Borrower's credit card clearinghouses and processors of notice in form satisfactory to the Administrative Agent, (each, a "CREDIT CARD NOTIFICATION"), and (iii) entered into agency agreements with the banks maintaining the deposit accounts identified on Schedule 2.21(c) (collectively, the "BLOCKED ACCOUNTS"), which agreements (the "BLOCKED ACCOUNT AGREEMENTS") shall be in form and substance satisfactory to the Administrative Agent. The DDA Notifications and Notifications, Credit Card Notifications and Blocked Account Agreements shall require, after the occurrence and during the continuance of a Default or Cash Dominion Control Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale of Inventory and other assets, all collections of Accounts, and all other cash payments received by the Borrowers from any Person or disposition from any source or on account of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges sale or other transaction or event (all such cash receipts and proceedscollections, “Cash Receipts”"CASH RECEIPTS"), to (x) a concentration account maintained by the Collateral Agent at Bank of America Fleet (the “Bank of America Concentration Account”"FRF CONCENTRATION ACCOUNT"), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require. In that regard, after the occurrence and during the continuance of a Default or Cash Dominion Control Event, the sweep on each Business Day of all Cash Receipts Borrowers shall cause the ACH or wire transfer to the Bank of America Concentration a Blocked Account or to the FRF Concentration Account, no less frequently than daily (and whether or not there is then an outstanding balance in the Loan Account) of (A) the then contents of each DDA, each such other account transfer to be net of any minimum balance, not to exceed $5,000.00, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained; and (B) the proceeds of all credit card charges not otherwise provided for pursuant hereto. Further, whether or not any Obligations are then outstanding, after the occurrence of a Default or Cash Control Event, the Borrowers shall cause the ACH or wire transfer to the FRF Concentration Account, no less frequently than daily, of the then entire ledger balance of each Blocked Account, net of such minimum balance, not to exceed $5,000.00, as may be required to be maintained in the subject Blocked Account by the bank at which such Blocked Account is maintained. In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Default or Cash Control Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent may direct, and shall not be commingled with respect to any of the Canadian Borrower, to a Concentration Account established Borrowers' other funds or deposited in any account of any Borrower other than as instructed by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document Administrative Agent.
(d) The Borrowers shall accurately report to the contrary, the Administrative Agent or all amounts deposited in the Canadian Agent, Blocked Accounts to ensure the proper transfer of funds as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) set forth above. If at any time after other than the occurrence and during the continuance of a Cash Dominion Event, times set forth above any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered)account, or held or invested in any manner, otherwise than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required hereinAgreement, then the Administrative Agent may shall require the Borrowers to close such account and have all funds held in such account therein transferred to the Bank of America Concentration Account or such other Controlled Account as an account maintained by the Administrative Agent may direct, at Fleet and with respect to the Canadian Borrower, all future deposits made to a Concentration Blocked Account established by the Canadian Borrower or as the Canadian Agent may otherwise directwhich is subject to a Blocked Account Agreement.
(ge) The Borrowers may close DDAs or Controlled Blocked Accounts and/or open new DDAs or Controlled Blocked Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Blocked Account Control Agreements (unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.212.21 and otherwise satisfactory to the Administrative Agent. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not maintain any bank accounts or enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to other than the ones expressly contemplated herein.
(f) The Borrowers may also maintain with the Administrative Agent at Fleet one or more disbursement accounts (the Canadian Agent, "FLEET DISBURSEMENT ACCOUNTS") to be used by the Borrowers for disbursements and payments (including payroll) in the ordinary course of business or as applicableotherwise permitted hereunder. The only Disbursement Accounts as of the Closing Date are those described in SCHEDULE 2.21(f).
(hg) The Bank of America FRF Concentration Account and the Concentration Accounts established by the Canadian Borrower are is, and shall remain remain, under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, that (i) such Borrower has no right of withdrawal from the Bank of America FRF Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America FRF Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America FRF Concentration Account shall be applied as provided in Sections Section 2.22(a) or 7.4, as applicable).
(ih) So long as (i) no Default has occurred, and (ii) no Cash Dominion Control Event has occurred and is continuingoccurred, daily, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs DDA Accounts and the Controlled Blocked Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, . Effective upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, notice to the Bank of America Concentration Account of Lead Borrower from the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Collateral Agent may otherwise direct.
(lx) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Default or (y) in the event of a Cash Dominion EventControl Event (which notice may be given by telephone if promptly confirmed in writing), the Borrowers receive FRF Concentration Account will, without any further action on the part of any Borrower or otherwise have the Collateral Agent convert into a closed account under the exclusive dominion and control of any the Collateral Agent in which funds are held subject to the rights of the Collateral Agent hereunder. In such proceeds or collections (other than proceeds deposited event, all amounts in any Excluded DDA)the FRF Concentration Account from time to time may be applied to the Obligations in such order and manner as provided in Section 2.22 hereof, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agentmay, as applicablein its discretion, and but shall not be commingled with obligated to, transfer any of amounts in the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver FRF Concentration Account to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”)Fleet Disbursement Accounts.
Appears in 1 contract
Samples: Credit Agreement (Jo-Ann Stores Inc)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as Schedule 2.21(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository (Ai) the name and address of that depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agentdepository.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such any Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by To the Borrowers. On extent not already provided to the Administrative Agent, on or prior to the Effective Date, the Borrowers shall enter into an Account Control Agreement (i) deliver to the Administrative Agent notifications executed on behalf of the Borrowers to each depository institution with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case which any DDA is maintained in form and substance reasonably satisfactory to the Administrative Agent.
, of the Administrative Agent’s interest in such DDA (deach, a “DDA Notification”), and (ii) deliver to the Administrative Agent notifications executed on behalf of the Borrowers to each of the Borrower’s credit card clearinghouses and processors of notice in form satisfactory to the Administrative Agent, (each, a “Credit Card Notification”), and (iii) enter into control agreements with the banks maintaining the deposit accounts identified on Schedule 2.21(c) (collectively, the “Blocked Accounts”), which agreements (the “Blocked Account Agreements”) shall be in form and substance satisfactory to the Administrative Agent. The DDA Notifications and Notifications, Credit Card Notifications and Blocked Account Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Control Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale of Inventory and other assets, all collections of Accounts, and all other cash payments received by the Borrowers from any Person or disposition from any source or on account of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges sale or other transaction or event (all such cash receipts and proceedscollections, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America BOA Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require. In that regard, after the occurrence and during the continuance of a Cash Dominion Control Event, the sweep on each Business Day of all Cash Receipts Borrowers shall cause the ACH or wire transfer to the Bank of America Concentration a Blocked Account or to the BOA Concentration Account, no less frequently than daily (and whether or not there is then an outstanding balance in the Loan Account) of (A) the then contents of each DDA, each such other account transfer to be net of any minimum balance, not to exceed $5,000.00, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained; and (B) the proceeds of all credit card charges not otherwise provided for pursuant hereto. Further, whether or not any Obligations are then outstanding, after the occurrence of a Cash Control Event, the Borrowers shall cause the ACH or wire transfer to the BOA Concentration Account, no less frequently than daily, of the then entire ledger balance of each Blocked Account, net of such minimum balance, not to exceed $5,000.00, as may be required to be maintained in the subject Blocked Account by the bank at which such Blocked Account is maintained. In the event that, notwithstanding the provisions of this SECTION 2.21, after the occurrence of a Cash Control Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent may direct, and shall not be commingled with respect to any of the Canadian Borrower, to a Concentration Account established Borrowers’ other funds or deposited in any account of any Borrower other than as instructed by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document Administrative Agent.
(d) The Borrowers shall accurately report to the contrary, the Administrative Agent or all amounts deposited in the Canadian Agent, Blocked Accounts to ensure the proper transfer of funds as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) set forth above. If at any time after other than the occurrence and during the continuance of a Cash Dominion Event, times set forth above any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered)account, or held or invested in any manner, otherwise than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required hereinAgreement, then the Administrative Agent may shall require the Borrowers to close such account and have all funds held in such account therein transferred to an account maintained by the Administrative Agent at Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, all future deposits made to a Concentration Blocked Account established by the Canadian Borrower or as the Canadian Agent may otherwise directwhich is subject to a Blocked Account Agreement.
(ge) The Borrowers may close DDAs or Controlled Blocked Accounts and/or open new DDAs or Controlled Blocked Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Blocked Account Control Agreements (unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.21SECTION 2.21 and otherwise satisfactory to the Administrative Agent. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not maintain any bank accounts or enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to other than the ones expressly contemplated herein.
(f) The Borrowers may also maintain with the Administrative Agent at Bank of America one or more disbursement accounts (the Canadian Agent, “BOA Disbursement Accounts”) to be used by the Borrowers for disbursements and payments (including payroll) in the ordinary course of business or as applicableotherwise permitted hereunder. The only Disbursement Accounts as of the Effective Date are those described in Schedule 2.21(f).
(hg) The Bank of America BOA Concentration Account and the Concentration Accounts established by the Canadian Borrower are is, and shall remain remain, under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, that (i) such Borrower has no right of withdrawal from the Bank of America BOA Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America BOA Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America BOA Concentration Account shall be applied as provided in Sections SECTION 2.22(a) or 7.4SECTION 7.04, as applicable.
(ih) So long as no Cash Dominion Control Event has occurred and is continuingoccurred, daily, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs DDA Accounts and Blocked Accounts. Effective upon notice to the Controlled Accounts.
(j) After Lead Borrower from the occurrence and during Collateral Agent in the continuation event of a Cash Dominion EventControl Event (which notice may be given by telephone if promptly confirmed in writing), the Borrowers shall cause BOA Concentration Account will, without any further action on the ACH or wire transfer to, upon the Administrative Agent’s part of any Borrower or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless Collateral Agent convert into a closed account under the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have exclusive dominion and control of any the Collateral Agent in which funds are held subject to the rights of the Collateral Agent hereunder. In such proceeds event, all amounts in the BOA Concentration Account from time to time may be applied to the Obligations in such order and manner as provided in SECTION 2.22 or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian AgentSECTION 7.04 hereof, as applicable, and the Administrative Agent may, in its discretion, but shall not be commingled with obligated to, transfer any of amounts in the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver BOA Concentration Account to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”)BOA Disbursement Accounts.
Appears in 1 contract
Samples: Credit Agreement (Jo-Ann Stores Inc)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as Schedule 2.23(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository (Ai) the name and address of that depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository depository.
(b) Annexed hereto as Schedule 2.23(b) is a list describing all arrangements to which the “DDA List”), Borrower is a party with respect to the payment to the Borrower of the proceeds of all credit card charges for sales by the Borrower.
(iic) upon the occurrence of an Event of Default The Borrower shall (i) at the request of the Administrative Agent, at any time after the occurrence and during the continuance of a Cash Dominion Event, deliver to the Administrative Agent notifications executed on behalf of the Borrowers Borrower to each depository institution identified on the with which any DDA List is maintained in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iiiii) deliver to the Administrative Agent on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with to each of the Borrowers’ major Borrower’s credit card clearinghouses and debit card processors of notice in form and substance reasonably satisfactory to the Administrative Agent.
, (beach, a “Credit Card Notification”), and (iii) Annexed hereto as Schedule 2.21(bwithin ninety (90) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to days after the Effective Date, the Borrowers shall enter into an Account Control Agreement agency agreements with the Controlled banks maintaining the deposit accounts identified on Schedule 2.23(c) (collectively, the “Blocked Accounts”), which agreements (the “Blocked Account Banks for the Concentration Accounts and the Investment Accounts, in each case Agreements”) shall be in form and substance reasonably satisfactory to the Administrative Agent.
(d) . The DDA Notifications and Notifications, Credit Card Notifications and Blocked Account Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale of Inventory and other assets, all collections of Accounts, all Net Proceeds, and all other cash payments received by the Borrower from any Person or disposition from any source or on account of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges sale or other transaction or event (all such cash receipts and proceedscollections, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent Borrower at Bank of America or with another Lender reasonably satisfactory to the Administrative Agent with whom a Blocked Account Agreement has been executed (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require. In that regard, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts Borrower shall cause the ACH or wire transfer to the Bank of America Concentration a Blocked Account or to the Concentration Account maintained at Bank of America, no less frequently than daily (and whether or not there is then an outstanding balance in the Loan Account) of (A) the then contents of each DDA, each such transfer to be net of any minimum balance, not to exceed $5,000, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained; and (B) the proceeds of all credit card charges not otherwise provided for pursuant hereto. Further, after the occurrence and during the continuance of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrower shall cause the ACH or wire transfer to the Concentration Account maintained at Bank of America, no less frequently than daily, of the then entire ledger balance of each Blocked Account and other account Concentration Account, net of such minimum balance, not to exceed $5,000, as may be required to be maintained in the subject Blocked Account or Concentration Account by the bank at which such Blocked Account or Concentration Account is maintained. In the event that, notwithstanding the provisions of this Section 2.23, after the occurrence and during the continuance of a Cash Dominion Event, the Borrower receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Borrower for the Administrative Agent may directand shall not be commingled with any of the Borrower’s other funds or deposited in any account of the Borrower and shall, and with respect to within one (1) Business Day after receipt, either be deposited into a Blocked Account or the Canadian Borrower, to a Concentration Account established maintained at Bank of America, or dealt with in such other fashion as the Borrower may be instructed by the Canadian Borrower or as the Canadian Agent may otherwise directAdministrative Agent. Notwithstanding any provision For purposes of this Agreement or any other Loan Document to the contraryclarity, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless until a Cash Dominion Event has occurred and has not been discontinued, the Borrower shall have occurred and be continuing and will withdraw such notice of exclusive full control and relinquish such control at such time dominion over, and may use, any and all cash and Cash Receipts as a Cash Dominion Event is no longer the Borrower may determine in effect, if requested in writing, by the Lead Borrowerits sole discretion and shall not be required to deposit or transfer, or (ii) cause to be deposited or transferred, any Excluded DDAcash or Cash Receipts into a Concentration Account.
(fd) The Borrower shall accurately report to the Administrative Agent all amounts deposited in the Blocked Accounts and Concentration Accounts to ensure the proper transfer of funds as set forth above. If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers Borrower are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered)account, or held or invested in any manner, otherwise than in a Controlled Blocked Account or Concentration Account that is subject to a Blocked Account Control Agreement as required hereinAgreement, then the Administrative Agent may shall require the Borrowers Borrower to close such account and have all funds held in such account therein transferred to an account maintained by the Administrative Agent at Bank of America and all future deposits made to a Blocked Account or Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, which is subject to a Concentration Blocked Account established by the Canadian Borrower or as the Canadian Agent may otherwise directAgreement.
(ge) The Borrowers Borrower may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery upon prior written notice to the Administrative Agent or and may open new DDAs by providing the Canadian Administrative Agent written notice thereof, together with, at the request of the Administrative Agent, as applicableat any time after the occurrence and during the continuance of a Cash Dominion Event, a copy of the appropriate DDA Notifications or Account Control Agreements Notification for the new depository consistent with the provisions of this Section 2.212.23 and otherwise satisfactory to the Administrative Agent. Unless consented The Borrower may close a Blocked Account or Concentration Account (other than the Concentration Account maintained with Bank of America) upon prior written notice to the Administrative Agent, together with written confirmation that the funds in writing the closed Blocked Account or Concentration Account have been, or are then being, transferred to another Blocked Account or another Concentration Account and may open new Blocked Accounts or Concentration Accounts by providing the Administrative Agent or written notice thereof, together with a Blocked Account Agreement with the Canadian Agent, as applicable, new depository consistent with the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed provisions of this Section 2.23 and delivered otherwise satisfactory to the Administrative Agent or the Canadian Agent, as applicable.
(hf) The Borrower may also maintain with the Administrative Agent at Bank of America one or more disbursement accounts (the “Bank of America Disbursement Accounts”) to be used by the Borrower for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder. The only Disbursement Accounts as of the Effective Date are those described in Schedule 2.23(f).
(g) The Concentration Account and the Concentration Accounts established by the Canadian Borrower are maintained at Bank of America is, and shall remain remain, under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each The Borrower acknowledges and agrees that, subject to the provisions of subparagraph that (i) below, (i) such the Borrower has no right of withdrawal from the Bank of America such Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America each Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDASection 2.24(a).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 1 contract
Samples: Credit Agreement (Stage Stores Inc)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (i) on the Effective Closing Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the Borrowers, which list includes, with respect to each depository (A) the name and address of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Closing Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Closing Date, the Borrowers shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts Accounts, in each case in form and substance reasonably satisfactory to the Administrative Agent. In the event that Adjusted Excess Availability becomes less than $75,000,000 the Borrowers shall within thirty (30) days thereof deliver Account Control Agreements with the Controlled Account Banks for the Investment AccountsAccounts existing at the time of such delivery, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of an Event of Default (in the case of the DDA Notifications) and after the occurrence and during the continuance of a Cash Dominion EventEvent (in the case of the Credit Card Notifications), the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDABorrower provided that no Event of Default is then in existence.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are is and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections Section 2.22(a) or 7.4, as applicable).
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs DDA Accounts and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled AccountAccount or other DDA, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)collections, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of annually after the Effective Closing Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 1 contract
Samples: Credit Agreement (Genesco Inc)
Cash Receipts.
(a) The Collateral Agent shall maintain account number 5045183372 at Bank of America (the “Concentration Account”). Subject to the rights of the Loan Parties set forth below during any period during which no Cash Dominion Event has occurred and is continuing, the Concentration Account is and shall remain, under the sole dominion and control of the Collateral Agent. The Loan Parties may maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Loan Parties for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder.
(b) All cash receipts and other proceeds from the sale or disposition of any Collateral relating to the Loan Parties’ operations in the United States of America including, without limitation, the proceeds of all credit card charges (all such cash receipts and proceeds, “Cash Receipts”) shall be deposited into one or more DDAs established for the account of the applicable Loan Party in the United States of America. Notwithstanding the foregoing, Cash Receipts from the Loan Parties’ wholesale operations in the United States of America (whether received in a lockbox or otherwise) shall, promptly on receipt, be deposited directly in or transferred by ACH or wire transfer to the Concentration Account or a Blocked Account.
(c) So long as no Cash Dominion Event has occurred and is continuing:
(i) the Loan Parties may direct, and shall have sole control over, the manner of disposition of its funds in the DDA Accounts (including savings accounts), the Blocked Accounts, the Concentration Account and each Disbursement Account and may close or change the services provided in respect of DDA Accounts, Blocked Accounts and Disbursement Accounts, provided that in the case of a closure of a Blocked Account, the funds on deposit therein shall be transferred to another Blocked Account or the Concentration Account; and
(ii) the Loan Parties shall cause the ACH or wire transfer of all available and collected Cash Receipts in each such DDA to a Blocked Account or the Concentration Account not less frequently than each Business Day, provided that (A) to the extent that on any Business Day technical problems prevent any such ACH or wire, such funds shall be transferred on the next following Business Day on which technical problems do not prevent such transfer and (B) notwithstanding the foregoing, the Loan Parties need not cause the ACH or wire transfer from a DDA to a Blocked Account or the Concentration Account such reasonable amount (based upon prior business practices of the Borrowers but in no event to exceed $50,000.00 (or such higher amount as the Administrative Agent in its Permitted Discretion determines) for any single DDA (or in the case that such single DDA has multiple subaccounts, for any such subaccount) or $250,000.00 (or such higher amount as the Administrative Agent in its Permitted Discretion determines) in the aggregate for all DDAs (including all such subaccounts) as is necessary or appropriate to cover dishonored checks, credit card chargebacks, bank fees and similar charges, in each case in the ordinary course of business. For purposes of the calculation of the amount on deposit in any single DDA (or in any subaccount of a DDA), there shall be excluded any amounts for which an ACH transfer has been initiated but which transfer has not as yet been made in the ordinary course of business.
(d) After the occurrence and during the continuation of a Cash Dominion Event:
(i) at the request of Administrative Agent, the Loan Parties shall deliver to the Administrative Agent (iA) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the BorrowersLoan Parties, which list includes, with respect to each depository (A1) the name and address of that depository; (B2) the account number(s) maintained with such depository; and (C3) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iiiB) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf substantially in the form of the Borrowers with each of the Borrowers’ major credit card and debit card processors in Exhibit F hereto (or such other form and substance as may be reasonably satisfactory to the Administrative Agent.) executed on behalf of the Loan Parties with each of the Loan Parties’ major credit card processors;
(bii) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Date, the Borrowers shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other no Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event Party shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, any access to or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (iiy) upon notice to a Blocked Account Bank, no Loan Party shall have any access to or right of withdrawal from the Blocked Accounts maintained with such Blocked Account Bank, and (z) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.Section 2.24;
(iiii) So long as no Cash Dominion Event has occurred and is continuingupon the Administrative Agent’s instruction, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers Loan Parties shall cause the ACH or wire transfer to, upon the Administrative Agent’s to any Blocked Account or the Canadian Agent’s, as applicable, instruction, any Controlled Concentration Account (whether or not there is then an outstanding balance in the Loan Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of all available and collected Cash Receipts in each such DDA DDA, provided that (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDAi) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of shall not require more than one such transfer each day, (ii) to the contents of each DDA extent that on any Business Day technical problems prevent any such ACH or wire, such funds shall be transferred on the next following Business Day on which technical problems do not prevent such transfer and (other than any Excluded DDA).
(kiii) After notwithstanding the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstandingforegoing, the Borrowers shall Loan Parties need not cause the ACH or wire transfer, upon the Administrative Agent’s transfer from a DDA to a Blocked Account or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account such reasonable amount (based upon prior business practices of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not Borrowers but in no event to exceed $10,000, as may be required to be maintained 150,000.00 in the subject Controlled Account by the bank at which aggregate or such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or higher amount as the Canadian Administrative Agent may otherwise direct.in its Permitted Discretion determines) as is necessary or appropriate to cover dishonored checks, credit card chargebacks, bank fees and similar charges, in each case in the ordinary course of business; and
(liv) In in the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event2.23, the Borrowers Loan Parties receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)collections, such proceeds and collections shall be held in trust by the Borrowers Loan Parties for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the BorrowersLoan Parties’ other funds or deposited in any account of Borrower any Loan Party other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”)..
Appears in 1 contract
Samples: Credit Agreement (Caleres Inc)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as Schedule 2.22(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository depository, (Ai) the name and address of that depository; , and (Bii) the account number(s) maintained with such depository; and . The Lead Borrower shall provide the Administrative Agent an updated Schedule 2.22(a) within fifteen (C15) days after the end of each Fiscal Quarter.
(b) Annexed hereto as Schedule 2.22(b) is a list describing all arrangements to which the Borrowers are a party with respect to the extent known, a contact person at such depository (payment to the “DDA List”), (ii) upon the occurrence of an Event of Default at the request Borrowers of the proceeds of all credit card charges for sales by the Borrowers.
(c) On or prior to the Closing Date, the Borrowers shall (i) deliver to the Administrative Agent, Agent notifications executed on behalf of the Borrowers to each depository institution identified on the with which any DDA List is maintained in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iiiii) on or prior deliver to the Effective Date and periodically thereafter Administrative Agent notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with to each of the Borrowers’ major credit card clearinghouses and debit card processors of notice in form and substance satisfactory to the Administrative Agent (each, a “Credit Card Notification”) and (iii) enter into agency agreements with the banks maintaining the deposit accounts identified on Schedule 2.22(c) (collectively, the “Blocked Accounts”), which agreements (the “Blocked Account Agreements”) shall be in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) . The Administrative Agent shall be entitled to deliver the DDA Notifications to the applicable depositing institutions at any time on and after the occurrence of an Event of Default or the date, if any, on which Excess Availability is a list describing all arrangements less than $30,000,000. The DDA Notifications and the Credit Card Notifications shall direct the recipients of such notifications to which any Borrower is a party comply with the written directions of the Collateral Agent received from time to time with respect to the payment contents of such DDAs and the collections of Accounts processed by such credit card clearinghouses and processors, respectively. The Blocked Account Agreements shall permit, after the occurrence of an Event of Default and subject to the terms and conditions of this Section 2.22(c), the Collateral Agent to direct the third parties to such agreements to sweep on each Business Day all available cash receipts from the sale of Inventory and other assets, all collections of Accounts, all proceeds of Collateral, and all other cash payments received by the Borrowers from any Borrower Person or from any source or on account of any sale or other transaction or event (all such cash receipts and collections, “Cash Receipts”), to a concentration account maintained by the Administrative Agent at Bank of America (the “Concentration Account”) or such other account as otherwise directed by the Collateral Agent. In that regard, after the occurrence of an Event of Default, the Borrowers shall cause the ACH or wire transfer to a Blocked Account or to the Concentration Account, no less frequently than daily (and whether or not there is then an outstanding balance in the Loan Account) of (A) the then contents of each DDA, each such transfer to be net of an amount not to exceed $10,000 which may remain on deposit in each DDA (unless the Collateral Agent is exercising its rights and remedies under the Security Documents with respect to a substantial portion of the Collateral, in which case the entire contents of each DDA shall be swept daily); and (B) the proceeds of all credit card and debit charges (to be paid directly by any credit card charges for sales clearinghouse or processor or, if received by any Loan Party, by such Borrower.
(cLoan Party) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by not otherwise provided for pursuant hereto. Further, after the Borrowers. On occurrence of an Event of Default, whether or prior to the Effective Datenot any Obligations are then outstanding, the Borrowers shall enter into cause the ACH or wire transfer to the Concentration Account, no less frequently than daily, of the then entire ledger balance of each Blocked Account, net of an amount, not to exceed $75,000 in the aggregate, which may remain on deposit in the Blocked Accounts (unless the Collateral Agent is exercising its rights and remedies under the Security Documents with respect to a substantial portion of the Collateral, in which case the entire contents of each Blocked Account Control Agreement with shall be swept daily). In the Controlled Account Banks event that, notwithstanding the provisions of this Section 2.22, after the occurrence of an Event of Default, the Borrowers receive or otherwise have dominion and control of any Cash Receipts, proceeds or collections, such Cash Receipts, proceeds, and collections shall be held in trust by the Borrowers for the Administrative Agent and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of the Borrowers and shall, within one Business Day after receipt, either be deposited into a Blocked Account or the Concentration Accounts and Account, or dealt with in such other fashion as the Investment Accounts, in each case in form and substance reasonably satisfactory to Borrowers may be instructed by the Administrative Agent.
(d) The DDA Notifications and Credit Card Notifications shall requireAt the request of the Administrative Agent, after at any time upon the occurrence and during the continuance of a Cash Dominion Eventan Event of Default, the sweep on each Business Day of all available cash receipts and other proceeds from the sale Borrowers shall deliver or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), shall cause to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as be delivered to the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day accurate reports of all Cash Receipts amounts deposited in the Blocked Accounts to ensure the Bank proper transfer of America Concentration Account or to such other account funds as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise directset forth above. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Eventan Event of Default, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification notification has been delivered), or held or invested in any manner, otherwise manner other than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required hereinor the Concentration Account, then the Administrative Agent may shall require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account, a Blocked Account or such other Controlled Account account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(ge) The Provided no Event of Default has occurred and is continuing, the Borrowers may close DDAs or Controlled DDAs, Blocked Accounts and Securities Accounts and/or open new DDAs or Controlled DDAs, Blocked Accounts and Securities Accounts, subject to to, in the case of DDAs and Blocked accounts, the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Blocked Account Control Agreements (unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.21. Unless consented 2.22 and otherwise satisfactory to in writing by the Administrative Agent or the Canadian Agent, as applicable. Provided no Event of Default has occurred and is continuing, the Borrowers may not terminate or enter into any agreements new arrangements with additional respect to the payment to the Borrowers of the proceeds of all credit card processors unless contemporaneously therewithcharges for sales by the Borrowers; provided, however, that the Borrowers shall deliver to the Administrative Agent a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicablefor any new arrangement promptly after entering into such new agreement.
(hf) The Bank Borrowers may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Borrowers for disbursements and payments (including payroll, sales taxes, or withholding taxes) in the ordinary course of America business or as otherwise permitted hereunder, provided such Disbursement Accounts are subject to a security interest in favor of the Collateral Agent for the benefit of itself and the Secured Parties. The only Disbursement Accounts as of the Closing Date are those described in Schedule 2.22(f).
(g) The Concentration Account and the Concentration Accounts established by the Canadian Borrower are is, and shall remain remain, under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges The Borrowers acknowledge and agrees that, subject to the provisions of subparagraph agree that (i) below, (i) such Borrower has the Borrowers have no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicableSection 2.23(a).
(ih) So long as no Cash Dominion Event of Default has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs DDA Accounts, any Blocked Account and any Securities Account. Neither the Administrative Agent nor the Collateral Agent shall send any directive (other than delivering the DDA Notifications and the Controlled AccountsCredit Card Notifications as permitted by clause (c) above) to any DDA or any of the Borrowers’ credit card clearinghouses or processors unless and until an Event of Default shall have occurred. Upon the occurrence of an Event of Default, any directives to any DDA, any of the Borrowers’ credit card clearinghouses or processors or any institution at which a Blocked Account or Securities Account is maintained shall be consistent with the provisions of paragraphs (c) above and (i) below.
(ji) After the occurrence and during the continuation Annexed hereto as Schedule 2.22(i) is a list of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon all securities accounts at any institution in which any Loan Party holds any Investments (other than securities accounts located at the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Collateral Agent with or an accounting Affiliate of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Collateral Agent) (collectively with any such accounts hereafter established, the “Securities Accounts”). Upon the occurrence of an Event of Default or in the event that Excess Availability shall at any time be less than $30,000,000, the Loan Parties shall cause, within three (3) Business Days of the occurrence of such Event of Default or the date on which Excess Availability is less than $30,000,000, as applicable, and shall not be commingled with any each of the Borrowers’ other funds Investments in each of the Securities Accounts to be either (i) transferred to a Securities Account located at the Administrative Agent, the Collateral Agent or deposited in any account an Affiliate of Borrower other than as instructed by the Administrative Agent or the Canadian AgentCollateral Agent or (ii) liquidated, as applicable.
(m) After with the occurrence and during the continuation proceeds of a Cash Dominion Event, the Borrowers shall deliver such Investments delivered to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, for application in accordance with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”)this Agreement.
Appears in 1 contract
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as SCHEDULE 2.22(A) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository (Ai) the name and address of that depository; and (Bii) the account number(s) maintained with such depository; and
(Cb) Annexed hereto as SCHEDULE 2.22(B) is a list describing all arrangements to which the Borrowers are a party with respect to the extent known, a contact person at such depository (payment to the “DDA List”), (ii) upon the occurrence of an Event of Default at the request Borrowers of the proceeds of all credit card charges for sales by the Borrowers.
(c) On or prior to the Closing Date, the Borrowers shall (i) deliver to the Administrative Agent, Agent notifications executed on behalf of the Borrowers to each depository institution with which any DDA is maintained in form and substance satisfactory to the Administrative Agent, of the Administrative Agent's interest in such DDA (each, a "DDA NOTIFICATION"), (ii) deliver to the Administrative Agent notifications to each of the Borrowers' credit card clearinghouses and processors of notice in form and substance satisfactory to the Administrative Agent (each, a "CREDIT CARD NOTIFICATION"), and (iii) enter into agency agreements with the banks maintaining the deposit accounts identified on SCHEDULE 2.22(C) (collectively, the DDA List "BLOCKED ACCOUNTS"), which agreements (the "BLOCKED ACCOUNT AGREEMENTS") shall be in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Date, the Borrowers shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Credit Card Notifications shall require the sweep on each Business Day of all available cash receipts, net of any minimum balance, not to exceed $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, from the sale of Inventory and other assets, all collections of Accounts, all proceeds of Collateral, and all other cash payments received by the Borrowers from any Person or from any source or on account of any sale or other transaction or event (all such cash receipts and collections, "CASH RECEIPTS"), to a Blocked Account. The Blocked Account Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Administrative Agent at Bank of America (the “Bank of America Concentration Account”"AGENT'S ACCOUNT"), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require. In that regard, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts Borrowers shall cause the ACH or wire transfer to the Bank of America Concentration a Blocked Account or to the Agent's Account, no less frequently than daily (and whether or not there is then an outstanding balance in the Loan Account) of (A) the then contents of each DDA, each such other account transfer to be net of any minimum balance, not to exceed $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained; and (B) the proceeds of all credit card charges not otherwise provided for pursuant hereto. Further, after the occurrence of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer to the Agent's Account, no less frequently than daily, of the then entire ledger balance of each Blocked Account, net of such minimum balance, not to exceed $2,500, as may be required to be maintained in the subject Blocked Account by the bank at which such Blocked Account is maintained. In the event that, notwithstanding the provisions of this Section 2.22, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise has dominion and control of any Cash Receipts, proceeds or collections, such Cash Receipts, proceeds, and collections shall be held in trust by the Borrowers for the Administrative Agent and shall not be commingled with any of the Borrowers' other funds or deposited in any account of the Borrowers and shall, within one Business Day after receipt, either be deposited into a Blocked Account or the Agent's Account, or dealt with in such other fashion as the Borrowers may direct, and with respect to the Canadian Borrower, to a Concentration Account established be instructed by the Canadian Borrower Administrative Agent.
(d) The Borrowers shall deliver or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document shall cause to the contrary, be delivered to the Administrative Agent or accurate reports of all amounts deposited in the Canadian Agent, Blocked Accounts to ensure the proper transfer of funds as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) set forth above. If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered)account, or held or invested in any manner, otherwise than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required hereinAgreement, then the Administrative Agent may shall require the Borrowers to close such account and have all funds held in such account therein transferred to an account maintained by the Administrative Agent at Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, all future deposits made to a Concentration Blocked Account established by the Canadian Borrower or as the Canadian Agent may otherwise directwhich is subject to a Blocked Account Agreement.
(ge) The Borrowers may close DDAs or Controlled Blocked Accounts and/or open new DDAs or Controlled Blocked Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Blocked Account Control Agreements (unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.212.22 and otherwise satisfactory to the Administrative Agent. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not maintain any bank accounts or enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered other than the ones expressly contemplated herein.
(f) The Borrowers may also maintain one or more disbursement accounts (the "DISBURSEMENT ACCOUNTS") with Bank of America or such other financial institutions as are reasonably acceptable to the Administrative Agent to be used by the Borrowers for disbursements and payments (including payroll, sales taxes, or withholding taxes) in the Canadian Agentordinary course of business or as otherwise permitted hereunder, such Disbursement Accounts constitute Collateral and are subject to the Lien of the Collateral Agent for the benefit of itself and the Secured Parties. The only Disbursement Accounts as applicableof the Closing Date are those described in SCHEDULE 2.22(F).
(hg) The Bank of America Concentration Agent's Account and the Concentration Accounts established by the Canadian Borrower are is, and shall remain remain, under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges The Borrowers acknowledge and agrees that, subject to the provisions of subparagraph agree that (i) below, (i) such Borrower has the Borrowers have no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian BorrowerAgent's Account, (ii) the funds on deposit in the Bank of America Concentration Agent's Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Agent's Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDASection 2.23(a).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 1 contract
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (i) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the Borrowers, which list includes, with respect to each depository (A) the name of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent...
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Date, the Borrowers shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, in respect of DDAs maintained by the Domestic Borrowers or Canadian Borrower, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA maintained by the Domestic Borrowers or Canadian Borrower subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a an Account Control Agreement as required herein, then the Administrative Agent may require the such Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities and the UK Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities and the UK Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Domestic Borrowers and Canadian Borrower may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion EventEvent in respect of the Domestic Borrowers or the Canadian Borrower, the Borrowers receive a Borrower receives or otherwise have has dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers such Borrower for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ such Borrower’s other funds or deposited in any account of such Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
(n) Notwithstanding anything contained herein to the contrary, the provisions of Section 2.21 shall not apply to the UK Borrower until the exercise of the UK Increase Option. Upon the exercise of the UK Increase Option, and as a condition precedent to the exercise of the UK Increase Option, the UK Borrower will comply with all of the provisions of this Section 2.21 in a manner determined by the Agent in its sole discretion.
Appears in 1 contract
Samples: Credit Agreement (Genesco Inc)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as SCHEDULE 2.21(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository (Ai) the name and address of that depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agentdepository.
(b) Annexed hereto as Schedule SCHEDULE 2.21(b) is a list describing all arrangements to which any Borrower Loan Party is a party with respect to the payment to any Borrower Loan Party of the proceeds of all credit card and debit card charges for sales by such Borrowerany Loan Party.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Closing Date, the Borrowers Borrower shall enter into an Account Control Agreement have (i) delivered to the Administrative Agent notifications executed on behalf of the Loan Parties to each depository institution with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case which any DDA is maintained in form and substance reasonably satisfactory to the Administrative Agent.
, of the Administrative Agent's interest in such DDA (deach, a "DDA NOTIFICATION"), and (ii) delivered to the Administrative Agent notifications executed on behalf of the Loan Parties to each of the Loan Party's credit card clearinghouses and processors of notice in form satisfactory to the Administrative Agent (each, a "CREDIT CARD NOTIFICATION"), and (iii) entered into agency agreements with the banks maintaining the deposit accounts identified on SCHEDULE 2.21(c) (collectively, the "BLOCKED ACCOUNTS"), which agreements (the "BLOCKED ACCOUNT AGREEMENTS") shall be in form and substance satisfactory to the Administrative Agent. The Administrative Agent acknowledges receipt by BBNA of certain DDA Notifications, Credit Card Notifications, and Blocked Account Agreements prior to the commencement of the Proceedings in connection with the Pre-Petition Agreement; the Borrower acknowledges that such notifications and agreements shall be held by BBNA as subagent to the Collateral Agent and remain in full force and effect with respect to this Agreement and the Obligations, and the Borrower shall execute promptly after the Closing Date such further documents as the Administrative Agent may reasonably request in order to supplement, amend or confirm such notifications and agreements. The DDA Notifications and Notifications, Credit Card Notifications and Blocked Account Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, require the sweep on each Business Day of all available cash receipts and other proceeds from the sale of Inventory and other assets, all collections of Accounts, and all other cash payments received by the Borrower or disposition any other Loan Party from any Person or from any source or on account of any Collateralsale or other transaction or event, including, without limitation, except only the proceeds of all credit card and debit card charges the Loans (all such non-excluded cash receipts and proceedscollections, “Cash Receipts”"CASH RECEIPTS"), to (x) a concentration account maintained by the Collateral Agent at Bank of America BBNA (the “Bank of America Concentration Account”"FRF CONCENTRATION ACCOUNT"), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event. In that regard, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled to a Blocked Account, no less frequently than daily (unless and whether or not there is then an outstanding balance in the Commitments have been terminated hereunder and the Obligations have been paid in fullLoan Account) of (A) the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,5005,000 per store, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each maintained or such transfer, the Borrowers shall also provide greater amount as otherwise agreed to by the Administrative Agent with an accounting Agent; and (B) the proceeds of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Eventall credit card charges not otherwise provided for pursuant hereto. Further, whether or not any Obligations are then outstanding, the Borrowers Borrower shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, transfer to the Bank of America FRF Concentration Account Account, no less frequently than daily, of the then current entire ledger balance of each Controlled Blocked Account, net of such minimum balance, not to exceed $10,0005,000 per store, as may be required to be maintained in the subject Controlled Blocked Account by the bank at which such Controlled the Blocked Account is maintained; provided that amounts in Controlled Accounts established maintained or such greater amount as otherwise agreed to by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) Administrative Agent. In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive Borrower receives or otherwise have has dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)collections, such proceeds proceeds, and collections shall be held in trust by the Borrowers Borrower for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ Borrower's other funds or deposited in any account of the Borrower or any other Loan Party other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(md) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers The Borrower shall deliver accurately report to the Administrative Agent on each anniversary all amounts deposited in the Blocked Accounts to ensure the proper transfer of funds as set forth above. If at any time other than the Effective Date (times set forth above any cash or at such cash equivalents owned by the Borrower or any other times as Loan Party 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, the Administrative Agent shall require the Borrower to close such account and have all funds therein transferred to an account maintained by the Administrative Agent at BBNA and all future deposits made to a Blocked Account which is subject to a Blocked Account Agreement.
(e) The Borrower may reasonably requestrequest that the Administrative Agent close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts (or, in either case, permit the Borrower to do so), subject to the execution and delivery to the Administrative Agent of appropriate DDA Notifications or Blocked Account Agreements (unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.21 and otherwise satisfactory to the Administrative Agent. Unless consented to in writing by the Administrative Agent, the Borrower and the other Loan Parties may not maintain any bank accounts or enter into any agreements with credit card processors other than the ones expressly contemplated herein.
(f) The Borrower may also maintain one or more disbursement accounts (the "DISBURSEMENT ACCOUNTS") to be used by the Borrower for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder; provided that the Borrower delivers a list DDA Notification for each such Disbursement Account, and further provided that the amount on deposit in any such Disbursement Account shall at no time exceed the sums set forth on SCHEDULE 2.21(f). The only Disbursement Accounts as of all the Closing Date are those described in SCHEDULE 2.21(f).
(g) The FRF Concentration Account Debtorsis, which list includesand shall remain, with respect to each Account Debtor under the sole dominion and control of the Collateral Agent. Each Loan Party acknowledges and agrees that (i) such Loan Party has no right of withdrawal from the nameFRF Concentration Account, address, and telephone number of that Account Debtor; (ii) the account/reference numbers funds on deposit in the FRF Concentration Account shall continue to be collateral security for such Account Debtor; all of the Obligations and (iii) to the extent known, a contact person at such funds on deposit in the FRF Concentration Account Debtor (the “Account Debtor List”shall be applied as provided in Section 2.22(a).
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Lamonts Apparel Inc)
Cash Receipts. (a) The At the request of the Agent, the Borrowers shall deliver to the Administrative Agent (i) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following any time after the occurrence and during the continuance of a Cash Dominion Event), the Borrowers shall deliver to the Agent (i) a list of all present DDAs maintained by the Borrowers, which list includes, with respect to each depository (A) the name and address of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon at any time after the occurrence and during the continuance of an Event of Default at the request of the Administrative Agenta Cash Dominion Event, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s 's interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Second Amendment Effective Date and periodically thereafter Date, notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ ' major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent; provided that the Agent shall deliver the Credit Card Notifications to the Credit Card Processors only upon the occurrence and during the continuance of a Cash Dominion Event.
(b) Annexed hereto as Schedule 2.21(b[2.21(b)]2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective DateSecond Amendment Effective, Date the Borrowers shall enter have entered into an a Blocked Account Control Agreement with the Controlled Blocked Account Banks for the Concentration Accounts and the Investment Accounts, in each case as set forth on Schedule 2.21(c) hereto in form and substance reasonably satisfactory to the Administrative Agent.; it being understood and agreed that no Blocked Account Agreements shall be required in respect of any Excluded Accounts or Specified Accounts. 58[58]
(d) The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent Borrowers at Bank of America America, which shall be a Blocked Account (the “Bank of America Concentration Account”), or (yz) a Controlled another Blocked Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Blocked Account Control Agreements (other than the Blocked Account Agreement with respect to the Bank of America Concentration Account) shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered)account, or held or invested in any manner, otherwise than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required herein, then the Administrative Agent may shall require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Blocked Account daily or otherwise as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Blocked Accounts (other than the Bank of America Concentration Account) and/or open new DDAs or Controlled Blocked Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Blocked Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are is and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agentremain, as applicablea Blocked Account. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph [(ii)](i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections Section 2.22(a) or 7.4, as applicable).
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs DDA Accounts and the Controlled AccountsBlocked Accounts (other than the Bank of America Concentration Account).
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, 's instruction, any Controlled Blocked Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed $10,000 with respect to any one DDA (other than any Excluded DDA) and $2,500250,000 59[59] in the aggregate for all DDAs, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, 's instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Blocked Account (other than the Bank of America Concentration Account) available to the Borrowers, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Blocked Account by the bank at which such Controlled Blocked Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)collections, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ ' other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 1 contract
Samples: Credit Agreement (GameStop Corp.)
Cash Receipts. (a) The At the request of Administrative Agent, at any time after Excess Availability falls below $30,000,000 or upon the occurrence and continuance of an Event of Default, the Borrowers shall deliver to the Administrative Agent (i) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the Borrowers, which list includes, with respect to each depository (A) the name and address of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b2.22(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Date, Closing Date the Borrowers shall enter have entered into an a Blocked Account Control Agreement with the Controlled Blocked Account Banks for the Concentration Accounts and the Investment Accounts, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America Fleet (the “Bank of America FRG Concentration Account”), or (yz) a Controlled Blocked Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Blocked Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America FRG Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required herein, then the Administrative Agent may shall require the Borrowers to have all funds held in such account transferred to the Bank of America FRG Concentration Account or such other Controlled Blocked Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Blocked Accounts and/or open new DDAs or Controlled Blocked Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Blocked Account Control Agreements consistent with the provisions of this Section 2.212.22. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification Agreement is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America FRG Concentration Account and the Concentration Accounts established by the Canadian Borrower are is and shall remain remain, under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America FRG Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America FRG Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America FRG Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicableSection 2.23(a).
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs DDA Accounts and the Controlled Blocked Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Blocked Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,50010,000, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America FRG Concentration Account of the then current entire ledger balance of each Controlled Blocked Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Blocked Account by the bank at which such Controlled Blocked Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.212.22, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)collections, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 1 contract
Samples: Credit Agreement (Gamestop Corp)
Cash Receipts. (a) The Borrowers shall deliver On or prior to the Administrative Agent initial Purchase Date, the Borrower shall (i) on establish the Effective Date and thereafter annually (or at such times Concentration Account, as set forth in the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the Borrowers, which list includesControl Agreement, with respect to each depository (A) the name Bank of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository America (the “DDA ListDepository Bank”), (ii) upon enter into a deposit account control agreement, substantially in the occurrence form of an Event of Default at Exhibit F attached hereto (the request of “Control Agreement”), with the Depository Bank and the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory Agent with respect to the Administrative AgentConcentration Account, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(dand (iii) enter into a cash management and intercreditor agreement, substantially in the form of Exhibit G attached hereto (each, a the “DDA NotificationIntercreditor Agreement”), and (iii) on or prior to with the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to Collateral Agent, the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party , the administrative agent under the ACG Senior Facility, ACG and the collateral agent under the Intercreditor Agreement, with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the BorrowersAccount. On or prior to the Effective Date, the Borrowers The Concentration Account shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (be under the “Bank of America Concentration Account”), or control” (yas defined in the UCC) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or for the Canadian Agent, benefit of the Lenders and the other parties as applicableset forth in the Control Agreement. Each The Borrower acknowledges and agrees that, subject to the provisions of subparagraph that (i) below, (i) such neither the Borrower nor the Servicer has no any right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) Section 2.23. The Borrower has caused and shall cause the Servicer to instruct all Obligors of Transferred Receivables to deposit all Collections with respect to the Transferred Receivables to the Concentration Account. The Borrower has not established and shall not establish any additional accounts, other than the Concentration Account, the Disbursement Account and the Cash Collateral Account, or 7.4, as applicablechange the location of the Concentration Account without the prior written consent of the Administrative Agent in each instance.
(ib) So long The Borrower shall deliver or shall cause to be delivered to the Administrative Agent accurate reports of all amounts deposited in the Concentration Account to ensure the proper transfer of funds as no Cash Dominion Event has occurred and is continuingset forth in the Servicing Agreement. If any cash or cash equivalents owned by the Borrower are deposited to any account, or held or invested in any manner, other than in the Concentration Account, the Borrowers may direct, Administrative Agent shall require the Borrower to have all funds therein transferred to the Concentration Account and shall have sole control over, all future deposits made to the manner of disposition of its funds in the DDAs and the Controlled AccountsConcentration Account.
(jc) After The Borrower may maintain one disbursement account (the occurrence “Disbursement Account”) with Bank of America to be used by the Borrower for disbursements and during payments in the continuation ordinary course of a Cash Dominion Eventbusiness and permitted by the terms of this Agreement, so long as such Disbursement Account constitutes Collateral and is subject to the Borrowers shall cause Lien of the ACH or wire transfer to, upon Collateral Agent for the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder benefit of itself and the Obligations have been paid in full) Secured Parties. The Borrower has no Disbursement Account as of the then current contents of each such DDA (Closing Date other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDAset forth on Schedule 2.22(c).
(kd) After For the occurrence and during the continuation avoidance of a Cash Dominion Event, whether or not any Obligations are then outstandingdoubt, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Cash Collateral Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled involved with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicableforegoing process for handling cash receipts.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 1 contract
Cash Receipts. (a) The Borrowers shall deliver to At the Administrative Agent (i) on request of the Effective Date and thereafter annually (or Agent, at such times as the Administrative Agent may reasonably request following any time after the occurrence and during the continuance of a Cash Dominion Event), the Borrowers shall deliver to the Agent (i) a list of all present DDAs maintained by the Borrowers, which list includes, with respect to each depository (A) the name and address of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Date, Date the Borrowers shall enter have entered into an a Blocked Account Control Agreement with the Controlled Blocked Account Banks for the Concentration Accounts and the Investment Accounts, in each case as set forth on Schedule 2.21(c) hereto in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent Borrowers at Bank of America America, which shall be a Blocked Account (the “Bank of America Concentration Account”), or (yz) a Controlled another Blocked Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Blocked Account Control Agreements (other than the Blocked Account Agreement with respect to the Bank of America Concentration Account) shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered)account, or held or invested in any manner, otherwise than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required herein, then the Administrative Agent may shall require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Blocked Account daily or otherwise as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Blocked Accounts (other than the Bank of America Concentration Account) and/or open new DDAs or Controlled Blocked Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Blocked Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are is and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agentremain, as applicablea Blocked Account. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections Section 2.22(a) or 7.4, as applicable).
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs DDA Accounts and the Controlled AccountsBlocked Accounts (other than the Bank of America Concentration Account).
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Blocked Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed $10,000 with respect to any one DDA (other than any Excluded DDA) and $2,500250,000 in the aggregate for all DDAs, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Blocked Account (other than the Bank of America Concentration Account) available to the Borrowers, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Blocked Account by the bank at which such Controlled Blocked Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)collections, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 1 contract
Samples: Credit Agreement (GameStop Corp.)
Cash Receipts. (a) The Borrowers shall deliver Schedule 4.16 lists as of the Restatement Effective Date (after giving effect to the Administrative Agent (iTransactions) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the Borrowers, which list includes, with respect to each depository where a DDA or Concentration Account is located AmericasActive:15540830.1218080089.6
(Ai) the name and address of that such depository; , (Bii) the account number(s) maintained with such depository; depository and (Ciii) to the extent known, a contact person at such depository depository.
(the b) Each Loan Party that is a U.S. Borrower or U.S. Subsidiary Guarantor shall (i) enter into a concentration account control agreement (each, a “DDA ListConcentration Account Agreement”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers with respect to each depository institution identified on the DDA List Concentration Account maintained by such Loan Party, in form and substance reasonably satisfactory to the Administrative Agent, and instruct each depository institution for a DDA of such Loan Party to cause all amounts on deposit in excess of the Administrative Agent’s interest Retained Amount and available at the close of each Business Day in such DDA as described more fully in Section 2.21(dto be swept to a Concentration Account no less frequently than on a daily basis, (ii) either (A) instruct all Account Debtors of such Loan Party that remit payments of Accounts of such Account Debtors regularly by check pursuant to arrangements with such Loan Party to remit all such payments to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable DDA or Concentration Account, which remittances shall be collected by the applicable bank and substantially deposited in the form applicable DDA or Concentration Account, (B) cause the checks of Exhibit G any such Account Debtor in payment of any Account to be deposited in the applicable DDA or Concentration Account within two Business Days after such check is received by such Loan Party, or (eachC) cause amounts constituting payments on Accounts that are deposited in other accounts (including any accounts where they are commingled with other funds), to the extent that the balance in any such other account exceeds the Retained Amount, to be swept within one Business Day of becoming available to a “DDA Notification”)Concentration Account, and (iii) on or prior deliver to the Effective Date and periodically thereafter notifications (the “Administrative Agent Credit Card Notifications”) Notifications executed on behalf of the Borrowers with each of the Borrowers’ major credit card such Loan Party and debit card processors delivered to each applicable Credit Card Issuer and Credit Card Processor, in form and substance reasonably satisfactory to the Administrative Agent.
; provided, however, that the U.S. Loan Parties shall not be required to comply with the foregoing requirements of this clause (b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to any Foreign DDA so long as none of the ABL Priority Collateral located in such Foreign DDA is included in the calculation of the Borrowing Base. All amounts received by a U.S. Borrower or a U.S. Subsidiary Guarantor in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash (other than (x) any such amount to be deposited in Excluded Accounts and (y) Accounts or payment thereof excluded from the Collateral pursuant to any Borrower of the Security Document, including Excluded Assets) be deposited into a DDA or a Concentration Account. Each Loan Party agrees that it will not cause proceeds of all credit card and debit card charges for sales by such BorrowerDDAs to be directed other than as set forth in clause (ii) of this paragraph (b) (in the case of Foreign DDAs, to the extent the requirements of clause (ii) of this paragraph (b) are applicable thereto), unless such proceeds are swept within one Business Day of becoming available to a Concentration Account.
(c) Annexed hereto as Schedule 2.21(cEach Canadian Loan Party shall (i) is enter into a list describing all concentration account control agreement (each, a “Canadian Concentration Accounts and Investment Accounts Account Agreement”) with respect to each Concentration Account maintained by the Borrowers. On or prior to the Effective Date, the Borrowers shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment Accountsa Canadian Loan Party, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The , and instruct each depository institution for a DDA Notifications of such Canadian Loan Party to cause all amounts on deposit in excess of the Retained Amount and Credit Card Notifications shall require, after available at the occurrence and during the continuance close of a Cash Dominion Event, the sweep on each Business Day in such DDA to be swept to a Concentration Account of a Canadian Loan Party no less frequently than on a daily basis, (ii) either (A) instruct all available cash receipts and other proceeds from the sale or disposition Account Debtors of any Collateral, including, without limitation, the proceeds such Canadian Loan Party that remit payments of all credit card and debit card charges (Accounts of such Account Debtors regularly by check pursuant to arrangements with such Canadian Loan Party to remit all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts payments to the Bank of America Concentration Account applicable “P.O. Boxes” or to such other account as the Administrative Agent may direct, and “Lockbox Addresses” with respect to the applicable DDA or Concentration Account, which remittances shall be collected by the applicable bank and deposited in the applicable DDA or Concentration Account, (B) cause the checks of any such Account Debtor in payment of any Account to be deposited in the applicable DDA or Concentration Account within two Business Days after such check is received by such Canadian BorrowerLoan Party, or (C) cause amounts constituting payments on Accounts that are deposited in other accounts (including any accounts where they are commingled with other funds), to the extent that the balance in any such other account exceeds the Retained Amount, to be swept within one Business Day of becoming available to a Concentration Account established by the of such Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may directParty, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent Credit Card Notifications executed on behalf of each anniversary of the Effective Date (or at such other times as Canadian Loan Party and delivered to each applicable Credit Card Issuer and Credit Card Processor, in form reasonably satisfactory to the Administrative Agent may reasonably request)Agent; provided, a list however, that the Canadian Loan Parties shall not be required to comply with the foregoing requirements of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).this
Appears in 1 contract
Samples: Abl Credit Agreement (Veritiv Corp)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (i) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the BorrowersCredit Parties, which list includes, with respect to each depository (A) the name of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers Credit Parties to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers Credit Parties with each of the BorrowersCredit Parties’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower Credit Party is a party with respect to the payment to any Borrower Credit Party of the proceeds of all credit card and debit card charges for sales by such BorrowerCredit Party.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the BorrowersCredit Parties. On or prior to the Effective Date, the Borrowers Credit Parties shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, in respect of DDAs maintained by the Domestic Credit Parties or Canadian Credit Parties, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian BorrowerCredit Parties, to a Concentration Account established by the Canadian Borrower Credit Parties or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA maintained by the Domestic Credit Parties or Canadian Credit Parties subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers Credit Parties are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a an Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers such Credit Parties to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian BorrowerCredit Parties, to a Concentration Account established by the Canadian Borrower Credit Parties or as the Canadian Agent may otherwise direct.
(g) The Borrowers Credit Parties may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers Credit Parties may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower Credit Parties are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower Credit Party acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower Credit Party has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian BorrowerCredit Parties, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities and the UK Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower Credit Parties shall continue to be collateral security for all of the Canadian Liabilities and the UK Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers Domestic Credit Parties and Canadian Credit Parties may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers Credit Parties shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers Credit Parties shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers Credit Parties shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower Credit Parties shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion EventEvent in respect of the Domestic Credit Parties or the Canadian Credit Parties, the Borrowers receive a Credit Party receives or otherwise have has dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers such Credit Party for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ such Credit Party’s other funds or deposited in any account of Borrower such Credit Party other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers Credit Parties shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor Debtor.
(n) Notwithstanding anything contained herein to the “Account Debtor List”)contrary, the provisions of this Section 2.21 shall not apply to the UK Credit Parties until the establishment of the UK Borrowing Base. Upon the establishment of the UK Borrowing Base, and as a condition precedent to the establishment of the UK Borrowing Base, the UK Credit Parties will comply with all of the provisions of this Section 2.21 in a manner reasonably determined by the Agent and the Lead Borrower.
Appears in 1 contract
Samples: Credit Agreement (Genesco Inc)
Cash Receipts. (a) The Borrowers shall deliver Use commercially reasonable efforts to enter on or prior to the Administrative Agent (i) on the Effective Second Restatement Date and thereafter annually (or at such times longer period following such date as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Eventagree in its reasonable discretion), into an effective account control agreement (a list of all present DDAs maintained by the Borrowers“Deposit Account Control Agreement”) with each Approved Account Bank, which list includes, with respect to in each depository (A) the name of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List case in form and substance reasonably satisfactory to the Administrative Agent, with respect to each Deposit Account existing as of the Administrative Agent’s interest in such DDA Second Restatement Date and listed on Schedule 8.12 attached hereto, but excluding any Excluded Account (collectively, all Deposit Accounts required to become subject to a Deposit Account Control Agreement being referred to as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA NotificationMaterial Bank Accounts”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(bEach Loan Party shall (i) is instruct each Account Debtor or other Person obligated to make a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of them under any Account to make payment, or to continue to make payment, to an Approved Deposit Account, (ii) deposit in (A) a Store Account all Cash Receipts received in the proceeds of Stores, and (B) an Approved Deposit Account promptly upon receipt all credit card and debit card charges for sales other Cash Receipts (as defined below) received by such Borrower.
any Loan Party from any other Person, (ciii) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Date, the Borrowers shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case in form and substance reasonably satisfactory deliver to the Administrative Agent.
(d) The DDA Notifications and , prior to the Second Restatement Date, Credit Card Notifications shall require, after (it being agreed and acknowledged that as of the occurrence Second Restatement Date the Administrative Agent has received such Credit Card Notifications) and during the continuance of (iv) instruct each depository institution for a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, Deposit Account (including, without limitation, Store Accounts) to cause all amounts on deposit and available at the proceeds close of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred Deposit Account to be swept to one of the Bank of America Concentration Account or Loan Parties’ Approved Deposit Accounts no less frequently than on a daily basis, such other Controlled Account as the Administrative Agent may direct, and with respect instructions to the Canadian Borrower, be irrevocable unless otherwise agreed to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or Agent; provided that the Canadian AgentLoan Parties shall not be required to sweep, as applicableand may maintain, the Borrowers may an amount not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower, (ii) the funds on deposit exceed $2,000,000 in the Bank of America Concentration Account shall continue to be collateral security for aggregate in all of the Obligations (including the Canadian Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) Store Accounts. So long as no Cash Dominion Event has occurred and Period is continuing, the Borrowers Loan Parties may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs Approved Deposit Accounts, in each case subject to the other provisions of this Agreement and the Controlled Accountsother Loan Documents.
(jc) After Each Credit Card Notification and Deposit Account Control Agreement shall require (without further consent of the Loan Parties), and the Loan Parties shall cause, after the occurrence and during the continuation continuance of a Cash Dominion EventPeriod and subject to the Intercreditor Agreement, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless and whether or not there are then any outstanding Obligations) to the Commitments have been terminated hereunder concentration account maintained at Bank of America (or at another financial institution acceptable to the Administrative Agent in its sole discretion) by and in the Obligations have been paid in full) name of the Borrower (the “Concentration Account”), of all cash receipts and collections, including, without limitation, the following (collectively, the “Cash Receipts”):
(i) all available cash receipts from the sale of Inventory and other Collateral or casualty insurance proceeds arising from any of the foregoing;
(ii) all proceeds of collections of Accounts (including, without limitation, Credit Card Receivables);
(iii) the then current contents of each such DDA Deposit Account (other than including, without limitation, any Excluded DDA), each such transfer Approved Deposit Account subject to be a Deposit Account Control Agreement and any Store Account) (net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, balance as may be required to be maintained kept in the subject DDA Deposit Account by the bank institution at which such DDA Deposit Account is maintained, );
(iv) the cash proceeds of all credit card charges; and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting
(v) all cash proceeds of the contents of each DDA (any other than any Excluded DDA)Collateral.
(kd) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America The Concentration Account shall at all times be under the sole dominion and control of the then current entire ledger balance Collateral Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of each Controlled withdrawal from the Concentration Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained (ii) the funds on deposit in the subject Controlled Concentration Account by shall at all times be collateral security for all of the bank at which such Controlled Obligations, and (iii) the funds on deposit in the Concentration Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or applied as provided in this Agreement and in the Canadian Agent may otherwise direct.
(l) Intercreditor Agreement. In the event that, notwithstanding the provisions of this Section 2.218.12, after the occurrence of a Cash Dominion Event, the Borrowers receive any Loan Party receives or otherwise have has dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)during a Cash Dominion Period, such proceeds and collections shall be held in trust by the Borrowers such Loan Party for the Administrative Agent or the Canadian Collateral Agent, as applicable, and shall not be commingled with any of the Borrowers’ such Loan Party’s other funds or deposited in any account of Borrower such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such other than fashion as such Loan Party may be instructed by the Administrative Agent or Agent. Any amounts received in the Canadian Concentration Account at any time when all of the Obligations have been indefeasibly paid in full shall be remitted to the operating account of the Loan Parties maintained with the Administrative Agent, as applicable.
(me) After From and after the occurrence Second Restatement Date, except as otherwise expressly provided in the Loan Documents, each Loan Party shall maintain all Material Bank Accounts with the Administrative Agent or another financial institution reasonably acceptable to the Administrative Agent that has executed and during the continuation delivered such Deposit Account Control Agreements in respect of each such Material Bank Account.
(f) The Administrative Agent shall promptly (but in any event shall use its commercially reasonable efforts within one (1) Business Day to) furnish written notice to each Approved Account Bank at which any Approved Deposit Account which is subject to a Deposit Account Control Agreement is maintained of any termination of a Cash Dominion Event, Period.
(g) The parties hereto acknowledge and agree that the Borrowers shall deliver Cash Dominion Period in effect under the Existing Credit Agreement immediately prior to the Second Restatement Date (the “Existing Cash Dominion Period”) shall terminate and cease on the Second Restatement Date. The Administrative Agent on each anniversary shall promptly (but in any event shall use its commercially reasonable efforts within one (1) Business Day of the Effective Second Restatement Date (or to) furnish written notice to each Approved Account Bank at such other times as the Administrative Agent may reasonably request), which any Approved Deposit Account which is subject to a list of all Deposit Account Debtors, which list includes, Control Agreement is maintained with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”)Existing Cash Dominion Period termination.
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (i) on or prior to the Third Amendment Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the BorrowersCredit Parties, which list includes, with respect to each depository (A) the name of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers Credit Parties to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Third Amendment Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers Credit Parties with each of the BorrowersCredit Parties’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower Credit Party is a party with respect to the payment to any Borrower Credit Party of the proceeds of all credit card and debit card charges for sales by such BorrowerCredit Party.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the BorrowersCredit Parties. On or prior to the Third Amendment Effective Date, the Borrowers Credit Parties shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment AccountsAccounts other than the Pinacle Liquidity Management Account as defined on Schedule 2.21(c)), in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).DB1/ 126870242.8
Appears in 1 contract
Samples: Credit Agreement (Genesco Inc)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (i) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the BorrowersCredit Parties, which list includes, with respect to each depository (A) the name of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers Credit Parties to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers Credit Parties with each of the BorrowersCredit Parties’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower Credit Party is a party with respect to the payment to any Borrower Credit Party of the proceeds of all credit card and debit card charges for sales by such BorrowerCredit Party.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the BorrowersCredit Parties. On or prior to the Effective Date, the Borrowers Credit Parties shall enter into an Account Control Agreement with the Controlled Account Banks for the Concentration Accounts and the Investment AccountsAccounts other than the Pinacle Liquidity Management Account as defined on Schedule 2.21(c)), in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, in respect of DDAs maintained by the Domestic Credit Parties or Canadian Credit Parties, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian BorrowerCredit Parties, to a Concentration Account established by the Canadian Borrower Credit Parties or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA maintained by the Domestic Credit Parties or Canadian Credit Parties subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers Credit Parties are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a an Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers such Credit Parties to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian BorrowerCredit Parties, to a Concentration Account established by the Canadian Borrower Credit Parties or as the Canadian Agent may otherwise direct.
(g) The Borrowers Credit Parties may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers Credit Parties may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower Credit Parties are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower Credit Party acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower Credit Party has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian BorrowerCredit Parties, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities and the UK Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower Credit Parties shall continue to be collateral security for all of the Canadian Liabilities and the UK Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.47.4 or 7.5, as applicable.
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers Domestic Credit Parties and Canadian Credit Parties may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs and the Controlled Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 1 contract
Samples: Credit Agreement (Genesco Inc)
Cash Receipts. (a) The At the request of Administrative Agent, at any time after Excess Availability falls below fifteen percent (15%) of the then Borrowing Base, or upon the occurrence and continuance of an Event of Default, the Borrowers shall deliver to the Administrative Agent (i) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), a list of all present DDAs maintained by the Borrowers, which list includes, with respect to each depository (A) the name and address of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “"DDA List”"), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s 's interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “"DDA Notification”"), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “"Credit Card Notifications”") executed on behalf of the Borrowers with each of the Borrowers’ ' major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Date, Closing Date the Borrowers shall enter have entered into an a Blocked Account Control Agreement with the Controlled Blocked Account Banks for the Concentration Accounts and the Investment Accounts, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(d) The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “"Cash Receipts”"), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “"Bank of America Concentration Account”"), or (yz) a Controlled Blocked Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Blocked Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required herein, then the Administrative Agent may shall require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Blocked Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Blocked Accounts and/or open new DDAs or Controlled Blocked Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Blocked Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are is and shall remain remain, under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections Section 2.22(a) or 7.4, as applicable).
(i) So long as no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs DDA Accounts and the Controlled Blocked Accounts.
(j) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, 's instruction, any Controlled Blocked Account, no less frequently than daily (unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,50010,000, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, 's instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Blocked Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Blocked Account by the bank at which such Controlled Blocked Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a Cash Dominion Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)collections, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ ' other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicable.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
Appears in 1 contract
Samples: Credit Agreement (GameStop Corp.)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as Schedule 2.21(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by as of the BorrowersEffective Date, which list Schedule includes, with respect to each depository and DDA, as applicable, (Ai) the name and address of that depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository and (iv) indicating whether both a duly completed and executed DDA Notification and a Blocked Account Agreement satisfying the “DDA List”), (iirequirements of Section 2.21(c) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory have been delivered to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or Agent prior to the Effective Date for such DDA, and periodically thereafter notifications if so completed and delivered, identifying such DDA Notification and such Blocked Account Agreement for such DDA (the each such DDA, an “Credit Card NotificationsExisting Blocked Account”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent).
(b) Annexed hereto as Schedule 2.21(b) is a list (i) describing all arrangements to which any Borrower is a party as of the Effective Date with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
any Borrower and (cii) Annexed hereto as Schedule indicating whether a duly completed and executed Credit Card Notification satisfying the requirements of Section 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by has been delivered to the Borrowers. On or Agent prior to the Effective Date for such arrangement, and if so completed and delivered, identifying such Credit Card Notification (each such Credit Card Notification, an “Existing Credit Card Notification”).
(i) Within sixty (60) days after the Effective Date, (A) the Subsidiary Borrowers shall deliver to the Agent notifications executed on behalf of the Subsidiary Borrowers to each depository institution with which any DDA is maintained by the Subsidiary Borrowers (other than an Existing Blocked Account) in form satisfactory to the Agent, of the Agent’s interest in such DDA (each, a “DDA Notification”), and (B) the Subsidiary Borrowers shall either (1) enter into an Account Control Agreement agency agreements with the Controlled Account Banks for banks maintaining the Concentration Accounts deposit accounts or other accounts identified on Schedule 2.21(a) that maintain a DDA (other than an Existing Blocked Account) (collectively, the “New Blocked Accounts”, and collectively with the Investment Existing Blocked Accounts, in each case the “Blocked Accounts”), which agreements (the “Blocked Account Agreements”) shall be in form and substance reasonably satisfactory to the Administrative Agent.
, or (d2) if the Subsidiary Borrowers are unable to enter into Blocked Account Agreements in form reasonably satisfactory to the Agent with any of the banks identified on Schedule 2.21(a), the Subsidiary Borrowers shall (I) provide the Agent with evidence, reasonably satisfactory to the Agent, that the Subsidiary Borrowers have closed the deposit accounts maintained with such banks, (II) establish new deposit accounts or other accounts (the “Replacement Deposit Accounts”) with a different financial institution (the “Replacement Institution”), (III) enter into a Blocked Account Agreement in form and substance reasonably satisfactory to the Agent with each Replacement Institution and the Agent with respect to the Replacement Deposit Accounts, and (IV) in connection with the foregoing, provide the Agent with an amended Schedule 2.21(a) reflecting the removal of the closed deposit accounts and the addition of the Replacement Deposit Accounts, and (ii) within sixty (60) days after the Effective Date, the Borrowers shall deliver to the Agent notifications (the “Credit Card Notifications”) executed on behalf of the Subsidiary Borrowers to each of their major credit card processors that has not delivered an Existing Credit Card Notification instructing such credit card processors to remit proceeds of all credit card charges to a Blocked Account (Account No. 323-389732) with JPMorgan (the “Lead Borrower Blocked Account”), which Lead Borrower Blocked Account is subject to the Lead Borrower Blocked Account Agreement. The DDA Notifications and Credit Card Notifications shall require, after the occurrence and during the continuance of a an Event of Default or Cash Dominion Control Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any CollateralInventory, including, without limitation, the proceeds of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America JPMorgan (i.e. Account No 801-805236) the “Bank of America JPMorgan Concentration Account”). The Blocked Account Agreements (including, or (ywithout limitation, the Blocked Account Agreement with respect to the Lead Borrower Blocked Account) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a an Event of Default or Cash Dominion Control Event, the sweep on each Business Day of all cash and other amounts, including, without limitation, all Cash Receipts Receipts, held in such Blocked Account to the Bank of America JPMorgan Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDAAccount.
(fd) If at any time after The Borrowers shall cause all Cash Receipts from the occurrence and during the continuance sale of each Subsidiary Borrower’s Inventory to be directly deposited into a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred to the Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise directAgreement.
(ge) The Subsidiary Borrowers may close DDAs or Controlled Blocked Accounts and/or open new DDAs or Controlled Blocked Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Blocked Account Control Agreements consistent with the provisions of this Section 2.212.21 and Section 5.12(d). Unless consented to in writing by the Administrative Agent or the Canadian Agent, as applicable, the Borrowers may not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicableprovided that in the event that the Borrowers are able to cause their credit card processors to segregate the credit card proceeds of the Subsidiary Borrowers from the credit card proceeds of the Lead Borrower and its other Subsidiaries in a manner reasonably satisfactory to the Agent, the Borrowers may substitute a Credit Card Notification for those delivered on or before the Effective Date, instructing the credit card processors to remit proceeds of credit card charges of only the Subsidiary Borrowers to the JPMorgan Concentration Account.
(hf) The Bank of America JPMorgan Concentration Account and the Concentration Accounts established by the Canadian Borrower are is, and shall remain remain, under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, that (i) such Borrower has no right of withdrawal from the Bank of America JPMorgan Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America JPMorgan Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America JPMorgan Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicableSection 2.22.
(ig) So long as (i) no Event of Default has occurred and is continuing, and (ii) no Cash Dominion Control Event has occurred and is continuing, daily, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs DDA Accounts and the Controlled Blocked Accounts.
(j) . After the occurrence and during the continuation of a an Event of Default or Cash Dominion Control Event, the Subsidiary Borrowers shall cause the ACH or wire transfer to, upon to a Blocked Account or to the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled JPMorgan Concentration Account, no less frequently than daily (and whether or not there is then an outstanding balance in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have indefeasibly been paid in full) of the then current contents of each such DDA (other than any Excluded DDA), each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,50010,000, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Subsidiary Borrowers shall also provide the Administrative Agent with an accounting of the contents of each DDA which shall identify, to the satisfaction of the Agent, the Other Store Proceeds. Upon the receipt of (other than any Excluded x) the contents of each such DDA).
, and (ky) After such accounting, the occurrence and during Agent agrees to promptly remit to the continuation of a Cash Dominion EventBorrowers the Other Store Proceeds received by the Agent for such day. Further, whether or not any Obligations are then outstanding, after the occurrence and during the continuation of an Event of Default or Cash Control Event, the Subsidiary Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, transfer to the Bank of America JPMorgan Concentration Account Account, no less frequently than daily, of the then current entire ledger balance of each Controlled Blocked Account (including, without limitation, the Lead Borrower Blocked Account), net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Blocked Account by the bank at which such Controlled Blocked Account is maintained; provided that amounts . In addition to the foregoing, unless and until the Borrowers have established procedures with their credit card processors to deposit the NonBorrower Credit Card Proceeds to an account, other than the Lead Borrower Blocked Account, which is not subject to the Lien of the Agent, the Borrowers shall, in Controlled Accounts established connection with the transfer of the ledger balance of the Lead Borrower Blocked Account, net of the permitted balance, provide the Agent with an accounting of the contents of the Lead Borrower Blocked Account, which shall identify, to the satisfaction of the Agent, the NonBorrower Credit Card Proceeds. Upon the receipt of (x) the contents of the Lead Borrower Blocked Account, and (y) such accounting, the Agent agrees to promptly remit to the Borrowers the NonBorrower Credit Card Proceeds received by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) for such day. In the event that, notwithstanding the provisions of this Section 2.21, after the occurrence of a an Event of Default or Cash Dominion Control Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)collections, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of any Borrower other than as instructed by the Administrative Agent or Agent. Effective upon notice to the Canadian Lead Borrower from the Agent, as applicable.
(m) After after the occurrence and during the continuation of a Cash Dominion EventControl Event or an Event of Default (including, without limitation, the Borrowers shall deliver to the Administrative Agent on each anniversary failure of the Effective Date Borrowers to comply with the provisions of this Section 2.21(g)) (or at such other times as the Administrative Agent which notice may reasonably requestbe given by telephone if promptly confirmed in writing), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the nameAgent may, addressat any time thereafter, deliver the DDA Notifications and the Credit Card Notifications to the addressees thereof, and telephone number of that Account Debtor; (ii) the account/reference numbers for such DDA Accounts, Blocked Accounts and the JPMorgan Concentration Account Debtor; will, without any further action on the part of any Borrower or the Agent convert into a closed account under the exclusive dominion and (iii) control of the Agent in which funds are held subject to the extent knownrights of the Agent hereunder. In such event, a contact person at all amounts in the JPMorgan Concentration Account (other than NonBorrower Credit Card Proceeds and Other Store Proceeds) from time to time may be applied to the Obligations in such Account Debtor (the “Account Debtor List”)order and manner as provided in Section 2.22 hereof.
Appears in 1 contract
Samples: Credit Agreement (Dillards Inc)
Cash Receipts. (a) The Borrowers shall deliver Use commercially reasonable efforts to enter into as soon as possible, and in any event on or prior to the Administrative Agent date that occurs ninety (i90) on days after the Effective Date and thereafter annually (or at such times longer period following such date as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Eventagree in its reasonable discretion), a list of all present DDAs maintained by the Borrowers, which list includes, with respect to each depository (A) the name of that depository; (B) the account number(s) maintained with such depository; and (C) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agent.
(b) Annexed hereto as Schedule 2.21(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such Borrower.
(c) Annexed hereto as Schedule 2.21(c) is a list describing all Concentration Accounts and Investment Accounts maintained by the Borrowers. On or prior to the Effective Date, the Borrowers shall enter into an effective account control agreement (a “Deposit Account Control Agreement Agreement”) with the Controlled each Approved Account Banks for the Concentration Accounts and the Investment AccountsBank, in each case in form and substance reasonably satisfactory to the Administrative Agent, with respect to each Deposit Account in which material amounts (as reasonably determined by the Administrative Agent) of funds of any of the Loan Parties are concentrated (including those existing as of the Effective Date and listed on Schedule 8.12 attached hereto, and excluding, for the avoidance of doubt, xxxxx cash, payroll, trust and tax withholding accounts) (collectively, all Deposit Accounts required to become subject to a Deposit Account Control Agreement being referred to as the “Material Bank Accounts”).
(db) The DDA Notifications Each Loan Party shall (i) instruct each Account Debtor or other Person obligated to make a payment to any of them under any Account to make payment, or to continue to make payment, to an Approved Deposit Account, (ii) deposit in (A) a Store Account all Cash Receipts received in the Stores, and (B) an Approved Deposit Account promptly upon receipt all other Cash Receipts (as defined below) received by any Loan Party from any other Person, (iii) deliver to the Administrative Agent, on the Effective Date, Credit Card Notifications shall require, after the occurrence and during the continuance of (iv) instruct each depository institution for a Cash Dominion Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale or disposition of any Collateral, Deposit Account (including, without limitation, Store Accounts) to cause all amounts on deposit and available at the proceeds close of all credit card and debit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”), or (y) a Controlled Account, as the Administrative Agent or the Canadian Agent, as applicable, may direct.
(e) The Account Control Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Event, the sweep on each Business Day of all Cash Receipts to the Bank of America Concentration Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered), or held or invested in any manner, otherwise than in a Controlled Account that is subject to a Account Control Agreement as required herein, then the Administrative Agent may require the Borrowers to have all funds held in such account transferred Deposit Account to be swept to one of the Bank of America Concentration Account or Loan Parties’ Approved Deposit Accounts no less frequently than on a daily basis, such other Controlled Account as the Administrative Agent may direct, and with respect instructions to the Canadian Borrower, be irrevocable unless otherwise agreed to a Concentration Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(g) The Borrowers may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Account Control Agreements consistent with the provisions of this Section 2.21. Unless consented to in writing by the Administrative Agent or Agent; provided that the Canadian AgentLoan Parties shall not be required to sweep, as applicableand may maintain, the Borrowers may an amount not enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(h) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are and shall remain under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower, (ii) the funds on deposit exceed $1,000,000 in the Bank of America Concentration Account shall continue to be collateral security for aggregate in all of the Obligations (including the Canadian Liabilities), (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicable.
(i) Store Accounts. So long as no Cash Dominion Event has occurred and Period is continuing, the Borrowers Loan Parties may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs Approved Deposit Accounts, in each case subject to the other provisions of this Agreement and the Controlled Accountsother Loan Documents.
(jc) After Each Credit Card Notification and Deposit Account Control Agreement shall require (without further consent of the Loan Parties), and the Loan Parties shall cause, after the occurrence and during the continuation continuance of a Cash Dominion EventPeriod and subject to the Intercreditor Agreement, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently than daily (unless and whether or not there are then any outstanding Obligations) to the Commitments have been terminated hereunder concentration account maintained at Bank of America (or at another financial institution acceptable to the Administrative Agent in its sole discretion) by and in the Obligations have been paid in full) name of the Borrower (the “Concentration Account”), of all cash receipts and collections, including, without limitation, the following (collectively, the “Cash Receipts”):
(i) all available cash receipts from the sale of Inventory and other Collateral or casualty insurance proceeds arising from any of the foregoing;
(ii) all proceeds of collections of Accounts (including, without limitation, Credit Card Receivables);
(iii) the then current contents of each such DDA Deposit Account (other than including, without limitation, any Excluded DDA), each such transfer Approved Deposit Account subject to be a Deposit Account Control Agreement and any Store Account) (net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, balance as may be required to be maintained kept in the subject DDA Deposit Account by the bank institution at which such DDA Deposit Account is maintained, );
(iv) the cash proceeds of all credit card charges; and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting
(v) all cash proceeds of the contents of each DDA (any other than any Excluded DDA)Collateral.
(kd) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America The Concentration Account shall at all times be under the sole dominion and control of the then current entire ledger balance Collateral Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of each Controlled withdrawal from the Concentration Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained (ii) the funds on deposit in the subject Controlled Concentration Account by shall at all times be collateral security for all of the bank at which such Controlled Obligations, and (iii) the funds on deposit in the Concentration Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or applied as provided in this Agreement and in the Canadian Agent may otherwise direct.
(l) Intercreditor Agreement. In the event that, notwithstanding the provisions of this Section 2.218.12, after the occurrence of a Cash Dominion Event, the Borrowers receive any Loan Party receives or otherwise have has dominion and control of any such proceeds or collections (other than proceeds deposited in any Excluded DDA)during a Cash Dominion Period, such proceeds and collections shall be held in trust by the Borrowers such Loan Party for the Administrative Agent or the Canadian Collateral Agent, as applicable, and shall not be commingled with any of the Borrowers’ such Loan Party’s other funds or deposited in any account of Borrower such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such other than fashion as such Loan Party may be instructed by the Administrative Agent or Agent. Any amounts received in the Canadian Concentration Account at any time when all of the Obligations have been indefeasibly paid in full shall be remitted to the operating account of the Loan Parties maintained with the Administrative Agent, as applicable.
(me) After From and after the occurrence Effective Date, except as otherwise expressly provided in the Loan Documents, each Loan Party shall maintain all Material Bank Accounts with the Administrative Agent or another financial institution reasonably acceptable to the Administrative Agent that has executed and during the continuation delivered such Deposit Account Control Agreements in respect of each such Material Bank Account.
(f) The Administrative Agent shall promptly (but in any event shall use its commercially reasonable efforts within one (1) Business Day to) furnish written notice to each Approved Account Bank at which any Approved Deposit Account which is subject to a Deposit Account Control Agreement is maintained) of any termination of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”)Period.
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Cash Receipts. (a) The Borrowers shall deliver to the Administrative Agent (iAnnexed hereto as Schedule 2.22(a) on the Effective Date and thereafter annually (or at such times as the Administrative Agent may reasonably request following the occurrence and during the continuance of a Cash Dominion Event), is a list of all present DDAs maintained by the BorrowersDDAs, which list Schedule includes, with respect to each depository (Ai) the name and address of that depository; (Bii) the account number(s) maintained with such depository; and (Ciii) to the extent known, a contact person at such depository (the “DDA List”), (ii) upon the occurrence of an Event of Default at the request of the Administrative Agent, notifications executed on behalf of the Borrowers to each depository institution identified on the DDA List in form and substance reasonably satisfactory to the Administrative Agent, of the Administrative Agent’s interest in such DDA as described more fully in Section 2.21(d) and substantially in the form of Exhibit G (each, a “DDA Notification”), and (iii) on or prior to the Effective Date and periodically thereafter notifications (the “Credit Card Notifications”) executed on behalf of the Borrowers with each of the Borrowers’ major credit card and debit card processors in form and substance reasonably satisfactory to the Administrative Agentdepository.
(b) Annexed hereto as Schedule 2.21(b2.22(b) is a list describing all arrangements to which any Borrower is a party with respect to the payment to any Borrower of the proceeds of all credit card and debit card charges for sales by such any Borrower.
(c) Annexed hereto as Schedule 2.21(cThe Borrowers shall (i) is a list describing all Concentration Accounts and Investment Accounts maintained by upon request of the Borrowers. On or prior Administrative Agent, deliver to the Effective Date, Administrative Agent notifications executed on behalf of the Borrowers shall enter into an Account Control Agreement to each depository institution with the Controlled Account Banks for the Concentration Accounts and the Investment Accounts, in each case which any DDA is maintained in form and substance reasonably satisfactory to the Administrative Agent.
, of the Administrative Agent’s interest in such DDA (deach, a “DDA Notification”), and (ii) deliver to the Administrative Agent notifications executed on behalf of the Borrowers to each of the Borrower’s credit card clearinghouses and processors of notice in form satisfactory to the Administrative Agent, (each, a “Credit Card Notification”), and (iii) entered into agency agreements with the banks maintaining the deposit accounts identified on Schedule 2.22(c) (collectively, the “Blocked Accounts”), which agreements (the “Blocked Account Agreements”) shall be in form and substance satisfactory to the Administrative Agent. The DDA Notifications and Notifications, Credit Card Notifications and Blocked Account Agreements shall require, after the occurrence and during the continuance of a Cash Dominion Control Event, the sweep on each Business Day of all available cash receipts and other proceeds from the sale of Inventory and other assets, all collections of Accounts, and all other cash payments received by the Borrowers from any Person or disposition from any source or on account of any Collateralsale or other transaction or event, including, without limitation, the proceeds of all credit card and debit card charges any Prepayment Event (all such cash receipts and proceedscollections, “Cash Receipts”), to (x) a concentration account maintained by the Collateral Agent at Bank of America (the “Bank of America Concentration Account”). In that regard, after the occurrence, and during the continuance, of a Cash Control Event, the Borrowers shall cause the ACH or (y) wire transfer to a Controlled Blocked Account or to the Concentration Account, as no less frequently than daily (and whether or not there is then an outstanding balance in the Administrative Agent or Loan Account) of (A) the Canadian Agentthen contents of each DDA, each such transfer to be net of any minimum balance, not to exceed $50,000, as applicablemay be required to be maintained in the subject DDA by the bank at which such DDA is maintained; and (B) the proceeds of all credit card charges not otherwise provided for pursuant hereto, may direct.
and (eC) The Account Control Agreements shall requireall other Cash Receipts. Further, after the occurrence and during the continuance of a Cash Dominion Control Event, the sweep on each Business Day of all Cash Receipts Borrowers shall cause the ACH or wire transfer to the Bank Concentration Account, no less frequently than daily, of America Concentration the then entire ledger balance of each Blocked Account, net of such minimum balance, not to exceed $50,000, as may be required to be maintained in the subject Blocked Account or to such other account as the Administrative Agent may direct, and with respect to the Canadian Borrower, to a Concentration Account established by the Canadian Borrower or as bank at which such Blocked Account is maintained. In the Canadian Agent may otherwise direct. Notwithstanding any provision event that, notwithstanding the provisions of this Agreement or any other Loan Document to the contrarySection 2.22, the Administrative Agent or the Canadian Agent, as applicable, shall not send a notice of exclusive control regarding or otherwise exercise control over (i) any DDA subject to an Account Control Agreement unless a Cash Dominion Event shall have occurred and be continuing and will withdraw such notice of exclusive control and relinquish such control at such time as a Cash Dominion Event is no longer in effect, if requested in writing, by the Lead Borrower, or (ii) any Excluded DDA.
(f) If at any time after the occurrence and during the continuance of a Cash Dominion Control Event, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of any Borrower other than as instructed by the Administrative Agent.
(d) The Borrowers shall, after the occurrence and during the continuance of a Cash Control Event, accurately report to the Administrative Agent all amounts deposited in the Blocked Accounts to ensure the proper transfer of funds as set forth above. If at any time other than the times set forth above any cash or cash equivalents owned by the Borrowers are deposited to any account (other than an Excluded DDA or a DDA for which a DDA Notification has been delivered)account, or held or invested in any manner, otherwise than in a Controlled Blocked Account that is subject to a Blocked Account Control Agreement as required hereinAgreement, then the Administrative Agent may shall require the Borrowers to close such account and have all funds held in such account therein transferred to an account maintained by the Administrative Agent at Bank of America Concentration Account or such other Controlled Account as the Administrative Agent may direct, and with respect to the Canadian Borrower, all future deposits made to a Concentration Blocked Account established by the Canadian Borrower or as the Canadian Agent may otherwise directwhich is subject to a Blocked Account Agreement.
(ge) The Borrowers may (i) close DDAs or Controlled Blocked Accounts and/or open new DDAs or Controlled Blocked Accounts, subject to the execution and delivery to the Administrative Agent or the Canadian Agent, as applicable, of appropriate DDA Notifications or Blocked Account Control Agreements (unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.21. Unless consented 2.22 and otherwise satisfactory to in writing the Administrative Agent, and (ii) enter into any agreements with credit card processors subject to the execution and delivery to the Administrative Agent of appropriate Credit Card Notifications (unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.22 and otherwise satisfactory to the Administrative Agent. Unless the Lead Borrower shall have notified the Administrative Agent or and complied with the Canadian Agent, as applicableprovisions of the immediately preceding sentence, the Borrowers may not maintain any bank accounts or enter into any agreements with additional credit card processors unless contemporaneously therewith, a Credit Card Notification is executed and delivered to other than the ones expressly contemplated herein.
(f) The Borrowers may also maintain with the Administrative Agent at Bank of America one or more disbursement accounts (the Canadian Agent, “Disbursement Accounts”) to be used by the Borrowers for disbursements and payments (including payroll) in the ordinary course of business or as applicableotherwise permitted hereunder.
(hg) The Bank of America Concentration Account and the Concentration Accounts established by the Canadian Borrower are is, and shall remain remain, under the sole dominion and control of the Collateral Agent or the Canadian Agent, as applicable. Each Borrower acknowledges and agrees that, subject to the provisions of subparagraph (i) below, that (i) such Borrower has no right of withdrawal from the Bank of America Concentration Account and the Concentration Accounts established by the Canadian BorrowerAccount, (ii) the funds on deposit in the Bank of America Concentration Account shall continue to be collateral security for all of the Obligations (including the Canadian Liabilities), and (iii) the funds on deposit in the Concentration Accounts established by the Canadian Borrower shall continue to be collateral security for all of the Canadian Liabilities, and (iv) the funds on deposit in the Bank of America Concentration Account shall be applied as provided in Sections 2.22(a) or 7.4, as applicableSection 2.23(a).
(ih) So long as no Cash Dominion Control Event has occurred and is continuing, daily, the Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDAs DDA Accounts and Blocked Accounts. Effective upon notice to the Lead Borrower from the Collateral Agent in the event of a Cash Control Event and during the continuance thereof (which notice may be given by telephone if promptly confirmed in writing), the Concentration Account will, without any further action on the part of any Borrower or the Collateral Agent convert into a closed account under the exclusive dominion and control of the Collateral Agent in which funds are held subject to the rights of the Collateral Agent hereunder. In such event, all amounts in the Concentration Account and all other Cash Receipts from time to time may be applied to the Obligations in such order and manner as provided in Section 2.23 hereof, and the Controlled Administrative Agent may, in its discretion, but shall not be obligated to, transfer any amounts in the Concentration Account to the Disbursement Accounts.
(ji) After Notwithstanding anything to the occurrence and during contrary in this Section 2.22, in the continuation of event that a Cash Dominion Event, the Borrowers shall cause the ACH or wire transfer to, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, any Controlled Account, no less frequently Control Event has occurred but Excess Availability is greater than daily ten percent (unless the Commitments have been terminated hereunder and the Obligations have been paid in full10%) of the then current contents lesser of each such DDA (other than any Excluded DDA)the Borrowing Base or the Total Commitment, each such transfer to be net of any minimum balance, not to exceed with respect to any DDA (other than any Excluded DDA) $2,500, as may be required to be maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection with each such transfer, the Borrowers shall also provide the Administrative Agent with an accounting reserves the right, confirmed upon delivery of written notice thereof to the Lead Borrower, to suspend the implementation of the contents of each DDA (other than any Excluded DDA).
(k) After the occurrence and during the continuation of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer, upon the Administrative Agent’s or the Canadian Agent’s, as applicable, instruction, to the Bank of America Concentration Account of the then current entire ledger balance of each Controlled Account, net of such minimum balance, not to exceed $10,000, as may be required to be maintained in the subject Controlled Account by the bank at which such Controlled Account is maintained; provided that amounts in Controlled Accounts established by the Canadian Borrower shall be delivered only to a concentration account at Bank of America-Canada Branch or as the Canadian Agent may otherwise direct.
(l) In the event that, notwithstanding the foregoing provisions of this Section 2.212.22, after and such provisions shall not be implemented. The Administrative Agent further reserves the right to thereafter cause the implementation of the foregoing provisions as a result of the occurrence of the Cash Control Event, confirmed upon delivery of written notice thereof to the Lead Borrower. For purposes of clarity, the foregoing provisions of this Section 2.22 shall always be implemented automatically when a Cash Dominion Event, Control Event has occurred and Excess Availability is less than or equal to ten percent (10%) of the Borrowers receive or otherwise have dominion and control lesser of any such proceeds or collections (other than proceeds deposited in any Excluded DDA), such proceeds and collections shall be held in trust by the Borrowers for the Administrative Agent Borrowing Base or the Canadian Agent, as applicable, and shall not be commingled with any of the Borrowers’ other funds or deposited in any account of Borrower other than as instructed by the Administrative Agent or the Canadian Agent, as applicableTotal Commitment.
(m) After the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to the Administrative Agent on each anniversary of the Effective Date (or at such other times as the Administrative Agent may reasonably request), a list of all Account Debtors, which list includes, with respect to each Account Debtor (i) the name, address, and telephone number of that Account Debtor; (ii) the account/reference numbers for such Account Debtor; and (iii) to the extent known, a contact person at such Account Debtor (the “Account Debtor List”).
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Samples: Credit Agreement (Petsmart Inc)
