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 puproses 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 (A) a list of all present DDAs maintained by the Loan Parties, which list includes, with respect to each depository (1) the name and address of that depository; (2) the account number(s) maintained with such depository; and (3) to the extent known, a contact person at such depository (the “DDA List”), and (B) notifications (the “Credit Card Notifications”) substantially in the form of Exhibit F hereto (or such other form 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; (ii) (x) no Loan Party shall have any access to or right of withdrawal from the Concentration Account, (y) 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 Concentration Account shall continue to be collateral security for all of the Obligations and shall be applied as provided in Section 2.24; (iii) upon the Administrative Agent’s instruction, the Loan Parties shall cause the ACH or wire transfer to any Blocked Account or the Concentration Account (whether or not there is then an outstanding balance in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of all available and collected Cash Receipts in each such DDA, provided that (i) the Administrative Agent shall not require more than one such transfer each day, (ii) 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 (iii) 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 $150,000.00 in the aggregate or such higher amount as the Administrative Agent 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 (iv) in the event that, notwithstanding the provisions of this Section 2.23, the Loan Parties receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Loan Parties for the Administrative Agent and shall not be commingled with any of the Loan Parties’ other funds or deposited in any account of any Loan Party other than as instructed by the Administrative Agent.
Appears in 1 contract
Samples: Fourth Amended and Restated Credit Agreement (Caleres Inc)
Cash Receipts. (a) The Collateral Agent shall maintain account number 5045183372 at Bank After the occurrence of America (the “Concentration Account”). Subject to the rights of the Loan Parties set forth below during any period during which no a Cash Dominion Event has occurred and is continuingEvent, the Concentration Account is and Borrowers shall remain, under cause the sole dominion and control sweep on each Business Day 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 all available 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 Collateral, including, without limitation, the proceeds of all credit card charges (all such cash receipts and proceeds, “Cash Receipts”), to (x) shall be deposited into one or more DDAs established for a concentration account maintained by the account of the applicable Loan Party in the United States Agent at Bank of America. Notwithstanding , N.A. (the foregoing“Concentration Account”), or (y) a Blocked Account, as the Agent may direct.
(a) The Blocked Account Agreements shall require, after the occurrence of a Cash Dominion Event, the sweep on each Business Day of all 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 to such other account as the Agent may direct.
(b) If at any time after the occurrence of a Cash Dominion Event, any cash or cash equivalents owned by the Borrowers and constituting proceeds of Collateral are deposited to any account, or held or invested in any manner, otherwise than in a Blocked AccountAccount that is subject to a Blocked Account Agreement as required herein, the Agent shall require the Borrowers to close such account and have all funds therein transferred to the Concentration Account or such Blocked Account as the Agent may direct.
(c) The Borrowers may close Blocked Accounts and/or open new Blocked Accounts, subject to the execution and delivery to the Agent of Blocked Account Agreements consistent with the provisions of this Section 6.2.3.
(d) The Concentration Account is and shall remain under the sole dominion and control of the Agent. Each Borrower acknowledges and agrees that (i) such Borrower has no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall continue to be collateral security for all of the Obligations, and (iii) the funds on deposit in the Concentration Account shall be applied as provided in Section 3.2.6 or Section 3.4, as applicable.
(e) So long as no Cash Dominion Event has occurred and is continuing:
(i) occurred, the Loan Parties Borrowers may direct, and shall have sole control over, the manner of disposition of its funds in the DDA Accounts (including savings accounts)Blocked Accounts. After the occurrence of a Cash Dominion Event, whether or not any Obligations are then outstanding, 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 Borrowers 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 Daytransfer, 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 puproses 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 (A) a list of all present DDAs maintained by the Loan Parties, which list includes, with respect to each depository (1) the name and address of that depository; (2) the account number(s) maintained with such depository; and (3) to the extent known, a contact person at such depository (the “DDA List”), and (B) notifications (the “Credit Card Notifications”) substantially in the form of Exhibit F hereto (or such other form 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;
(ii) (x) no Loan Party shall have any access to or right of withdrawal from the Concentration Account, (y) 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 Concentration Account shall continue to be collateral security for all of the Obligations and shall be applied as provided in Section 2.24;
(iii) upon the Administrative Agent’s instruction, the Loan Parties shall cause the ACH or wire transfer to any Blocked Account or the Concentration Account (whether or not there is then an outstanding balance in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of all available and collected Cash Receipts in each such DDA, provided that (i) the Administrative Agent shall not require more than one such transfer each day, (ii) 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 (iii) 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 $150,000.00 in the aggregate or such higher amount as the Administrative Agent in its Permitted Discretion determines) as is necessary or appropriate to cover dishonored checks, credit card chargebacks, bank fees and similar charges, in then entire ledger balance of each case in the ordinary course of business; andBlocked Account.
(ivf) in In the event that, notwithstanding the provisions of this Section 2.236.2.3, after the occurrence of a Cash Dominion Event, the Loan Parties Borrowers receive or otherwise have dominion and control of any such proceeds or collectionscollections of Collateral, such proceeds and collections shall be held in trust by the Loan Parties Borrowers for the Administrative Agent and shall not be commingled with any of the Loan PartiesBorrowers’ other funds or deposited in any account of any Loan Party Borrower other than as instructed by the Administrative Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Restoration Hardware 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 or Canada, as applicable, 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 AmericaAmerica or Canada, as applicable. Notwithstanding the foregoing, Cash Receipts from the Loan Parties’ wholesale operations in the United States of America or Canada, as applicable (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)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 DayDay (or with respect to the Loan Parties situated in Canada, not less frequently than twice each week), 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 puproses 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 (A) a list of all present DDAs maintained by the Loan Parties, which list includes, with respect to each depository (1) the name and address of that depository; (2) the account number(s) maintained with such depository; and (3) to the extent known, a contact person at such depository (the “DDA List”), and (B) notifications (the “Credit Card Notifications”) substantially in the form of Exhibit F hereto (or such other form 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;
(ii) (x) no Loan Party shall have any access to or right of withdrawal from the Concentration Account, (y) 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 Concentration Account shall continue to be collateral security for all of the Obligations and shall be applied as provided in Section 2.24;
(iii) upon the Administrative Agent’s instruction, the Loan Parties shall cause the ACH or wire transfer to any Blocked Account or the Concentration Account (whether or not there is then an outstanding balance in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of all available and collected Cash Receipts in each such DDA, provided that (i) the Administrative Agent shall not require more than one such transfer each day, (ii) 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 (iii) notwithstanding the foregoing, (x) 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 $150,000.00 in the aggregate or such higher amount as the Administrative Agent 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 (y) so long as the Obligations have not been accelerated, the Loan Parties shall not be required to transfer or cause the transfer of any funds on deposit in any Canadian Blocked Account to any United States Blocked Account or the Concentration Account; and
(iv) in the event that, notwithstanding the provisions of this Section 2.23, the Loan Parties receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Loan Parties for the Administrative Agent and shall not be commingled with any of the Loan Parties’ other funds or deposited in any account of any Loan Party other than as instructed by the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Brown Shoe Co 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”Schedule 4.16(a) 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 puproses 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 (A) a list of all present DDAs maintained by the Loan Parties, which list includes, lists with respect to each depository where a DDA is located (1i) the name and address of that such depository; (2ii) the account number(s) maintained with such depository; and (3iii) 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 List”), and (B) notifications (the “Credit Card NotificationsConcentration Account Agreements”) substantially in covering accounts maintained by the form Borrower at JPMorgan, SunTrust Banks, Inc., Xxxxx Fargo & Company, Bank of Exhibit F hereto America, N.A. and/or Wachovia Bank (or such other banks that are reasonably acceptable to the Administrative Agent) (the “Concentration Accounts”), in form as may be reasonably satisfactory to the Administrative Agent, with 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) executed on behalf of the Loan Parties with each of the Loan Parties’ major credit card processors;
and (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 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 Security Document) be deposited into a DDA or Concentration Account, to be swept within 1 Business Day of becoming available to a 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 (b)(ii), unless such proceeds are swept within 1 Business Day of becoming available to a Concentration Account.
(c) Each Canadian Loan Party shall (i) enter into concentration account control agreements (the “Canadian Concentration Account Agreements”) covering accounts maintained by the Parent Borrower (or 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 Canadian Agent) (the “Canadian Concentration Accounts”), in form reasonably satisfactory to the 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 Concentration Accounts 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 Administrative Agent. Each 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) no such Loan Party shall have any access to or has no right of withdrawal from the a Concentration Account, (y) upon notice the funds on deposit in a Concentration Account shall at all times continue to be collateral security for all of the obligations of the Loan Parties hereunder and under the other Loan Documents, and (z) 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 Blocked Concentration Account Bankpursuant to subsection 4.16(b), no such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall have not be commingled with any access 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 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 Blocked Accounts maintained with such Blocked funds on deposit in a Canadian Concentration Account Bankshall at all times continue to be collateral security for all of the obligations of the Canadian Loan Parties hereunder and under the other Loan Documents, and (z) the funds on deposit in the Canadian Concentration Account shall continue to be collateral security for all of the Obligations and Accounts shall be applied as provided in Section 2.24;
(iii) upon the Administrative Agent’s instruction, the Loan Parties shall cause the ACH or wire transfer to any Blocked Account or the Concentration Account (whether or not there is then an outstanding balance in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of all available and collected Cash Receipts in each such DDA, provided that (i) the Administrative Agent shall not require more than one such transfer each day, (ii) 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 (iii) 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 $150,000.00 in the aggregate or such higher amount as the Administrative Agent 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
(iv) in subsection 10.17. In the event that, notwithstanding the provisions of this Section 2.23subsection 4.16, the any Canadian Loan Parties receive Party receives or otherwise have has dominion and control of any such cash proceeds or collectionscollections 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 the such Canadian Loan Parties Party for the Administrative Agent and Canadian Agent, shall not be commingled with any of the such Loan Parties’ Party’s other funds or deposited in any account of any such Canadian Loan Party and shall promptly be deposited in a Canadian Concentration Account or dealt with in such other than fashion as such Canadian Loan Party may be instructed by the Administrative Canadian Agent.
Appears in 1 contract
Samples: Abl Credit Agreement (HSI IP, 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 or Canada, as applicable, 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 AmericaAmerica or Canada, as applicable. Notwithstanding the foregoing, Cash Receipts from the Loan Parties’ wholesale operations in the United States of America or Canada, as applicable (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 DayDay (or with respect to the Loan Parties situated in Canada, not less frequently than twice each week), 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 puproses 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 (A) a list of all present DDAs maintained by the Loan Parties, which list includes, with respect to each depository (1) the name and address of that depository; (2) the account number(s) maintained with such depository; and (3) to the extent known, a contact person at such depository (the “DDA List”), and (B) notifications (the “Credit Card Notifications”) substantially in the form of Exhibit F hereto (or such other form 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;
(ii) (x) no Loan Party shall have any access to or right of withdrawal from the Concentration Account, (y) 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 Concentration Account shall continue to be collateral security for all of the Obligations and shall be applied as provided in Section 2.24;
(iii) upon the Administrative Agent’s instruction, the Loan Parties shall cause the ACH or wire transfer to any Blocked Account or the Concentration Account (whether or not there is then an outstanding balance in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of all available and collected Cash Receipts in each such DDA, provided that (i) the Administrative Agent shall not require more than one such transfer each day, (ii) 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 (iii) notwithstanding the foregoing, (x) 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 $150,000.00 in the aggregate or such higher amount as the Administrative Agent 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 (y) so long as the Obligations have not been accelerated, the Loan Parties shall not be required to transfer or cause the transfer of any funds on deposit in any Canadian Blocked Account to any United States Blocked Account or the Concentration Account; and
(iv) in the event that, notwithstanding the provisions of this Section 2.23, the Loan Parties receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Loan Parties for the Administrative Agent and shall not be commingled with any of the Loan Parties’ other funds or deposited in any account of any Loan Party other than as instructed by the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Brown Shoe Co Inc)
Cash Receipts. (a) The Collateral Use commercially reasonable efforts to enter on or prior to the First Amendment Effective Date (or such longer period following such date as the Administrative Agent shall maintain may agree in its reasonable discretion), into an effective account number 5045183372 at Bank control agreement (a “Deposit Account Control Agreement”) with each Approved Account Bank, in each case in form reasonably satisfactory to the Administrative Agent, with respect to each Deposit Account existing as of America the First Amendment Effective 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 the “Concentration AccountMaterial Bank Accounts”). 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 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 proceeds Cash Receipts (as defined below) received by any Loan Party from the sale or disposition of any Collateral relating other Person, (iii) deliver to the Loan Parties’ operations in Administrative Agent, prior to the United States First Amendment Effective Date, Credit Card Notifications (it being agreed and acknowledged that as of America the First Amendment Effective Date the Administrative Agent has received such Credit Card Notifications) and (iv) instruct each depository institution for a Deposit Account (including, without limitation, Store Accounts) to cause all amounts on deposit and available at the proceeds close of all credit card charges (all each Business Day in such cash receipts and proceeds, “Cash Receipts”) shall Deposit Account to be deposited into swept to 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 Approved Deposit Accounts no less frequently than on a daily basis, such instructions to be irrevocable unless otherwise agreed to by the Administrative Agent; provided that the Loan Parties shall not be required to sweep, and may maintain, an amount not to exceed $2,000,000 in the United States aggregate in all 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) Store Accounts. So long as no Cash Dominion Event has occurred and Period 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 Approved Deposit Accounts, in each case subject to the other provisions of this Agreement and the other Loan Documents.
(including savings accountsc) Each Credit Card Notification and Deposit Account Control Agreement shall require (without further consent of the Loan Parties), 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 cause, after the occurrence and during the continuance of a Cash Dominion Period and subject to the Intercreditor Agreement, 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 no less frequently than each Business Day, provided that daily (Aand whether or not there are then any outstanding Obligations) 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 concentration account maintained at Bank of the Borrowers but in no event to exceed $50,000.00 America (or such higher amount as at another financial institution acceptable to the Administrative Agent in its Permitted Discretion determinessole discretion) for any single DDA (or by and in the case that such single DDA has multiple subaccountsname of the Borrower (the “Concentration Account”), for 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 such subaccountof the foregoing;
(ii) or $250,000.00 all proceeds of collections of Accounts (or such higher amount including, without limitation, Credit Card Receivables);
(iii) the then contents of each Deposit Account (including, without limitation, any Approved Deposit Account subject to a Deposit Account Control Agreement and any Store Account) (net of any minimum balance as the Administrative Agent in its Permitted Discretion determines) may be required to be kept in the aggregate for subject Deposit Account by the institution at which such Deposit Account is maintained);
(iv) the cash proceeds of 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 ; and
(v) all cash proceeds of business. For puproses 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 businessother Collateral.
(d) After The Concentration Account shall at all times be under the occurrence sole dominion and during control of the continuation of a Cash Dominion Event:
Collateral Agent. The Loan Parties hereby acknowledge and agree that (i) at the request of Administrative Agent, the Loan Parties shall deliver to the Administrative Agent (A) a list of all present DDAs maintained by the Loan Parties, which list includes, with respect to each depository (1) the name and address of that depository; (2) the account number(s) maintained with such depository; and (3) to the extent known, a contact person at such depository (the “DDA List”), and (B) notifications (the “Credit Card Notifications”) substantially in the form of Exhibit F hereto (or such other form 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;
(ii) (x) have no Loan Party shall have any access to or right of withdrawal from the Concentration Account, (y) 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 (zii) the funds on deposit in the Concentration Account shall continue to at all times be collateral security for all of the Obligations Obligations, and (iii) the funds on deposit in the Concentration Account shall be applied as provided in Section 2.24;
(iii) upon the Administrative Agent’s instruction, the Loan Parties shall cause the ACH or wire transfer to any Blocked Account or the Concentration Account (whether or not there is then an outstanding balance this Agreement and in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of all available and collected Cash Receipts in each such DDA, provided that (i) the Administrative Agent shall not require more than one such transfer each day, (ii) 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 (iii) 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 $150,000.00 in the aggregate or such higher amount as the Administrative Agent 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
(iv) in the event that, notwithstanding the provisions of this Section 2.23, the Loan Parties receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Loan Parties for the Administrative Agent and shall not be commingled with any of the Loan Parties’ other funds or deposited in any account of any Loan Party other than as instructed by the Administrative Agent.the
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Cash Receipts. (a) The Collateral Annexed hereto as Schedule 2.22(a) is a list of all DDAs that exist on the Closing Date, which Schedule includes, with respect to each depository (i) the name and address of that depository; and (ii) the account number(s) maintained with such depository.
(b) Annexed hereto as Schedule 2.22(b) is a list describing all arrangements that exist on the Closing Date to which the Borrowers are a party with respect to the payment to the 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 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 (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 control agreements with the banks maintaining the deposit accounts identified on Schedule 2.22(c) annexed hereto (collectively, the “Blocked Accounts”), which agreements (the “Blocked Account Agreements”) shall maintain be in form and substance reasonably satisfactory to the Administrative Agent.
(d) It is further agreed as follows:
(i) Borrowers shall deposit, or cause to be deposited, into the DDAs or Blocked Accounts all available cash receipts (other than cash held in the ordinary course of business consistent with past practices) 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 number 5045183372 of any sale or other transaction or event (all such cash receipts and collections, “Cash Receipts”);
(ii) so long as no Cash Dominion Event shall exist, the Borrowers shall cause the ACH or wire transfer to the Blocked Accounts or the Concentration Account, no less frequently than twice a week (and whether or not any Obligations are then outstanding), of (A) the then contents of each DDA, each such transfer to be net of any minimum balance, not to exceed $7,500, 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;
(iii) the Credit Card Notifications and DDA Notifications shall require, after the occurrence and during the continuance of a Cash Dominion Event, the ACH or wire transfer to a Blocked Account or the Concentration Account, no less frequently than daily (and whether or not any Obligations are then outstanding), of (A) at such time the contents of such DDA exceeds $5,000, the contents of the account in excess of any minimum balance, not to exceed $5,000, as may be required to be maintained in the subject DDA by the financial institution at which such DDA is maintained; and (B) the proceeds of all credit card charges not otherwise provided for pursuant hereto;
(iv) the Borrowers shall cause the ACH or wire transfer to the account (Account No. 1134902201) of Lead Borrower with Citizens Bank of America or another account with a financial institution that is reasonably satisfactory to the Administrative Agent (the “Concentration Account”). Subject , which Concentration Account shall be subject to the rights a Blocked Account Agreement whether or not any Obligations are then outstanding, of the Loan Parties set forth below during any period during then balance of each Blocked Account, net of such minimum balance, not to exceed $7,500, as may be required to be maintained in the subject Blocked Account by the bank at which such Blocked Account is maintained, no less frequently than (x) twice a week, so long as no Cash Dominion Event has occurred shall exist, and is continuing(y) daily after the occurrence and during the continuance of a Cash Dominion Event; and
(v) after the occurrence and during the continuance of a Cash Dominion Event, whether or not any Obligations are then outstanding, the Borrowers shall cause the ACH or wire transfer to an account which shall be opened and maintained by the Collateral Agent at Bank of America, N.A. (the “Agent’s Account”), no less frequently than daily, of the then available balance of the Concentration Account is Account, net of such minimum balance, not to exceed $5,000, as may be required to be maintained in the Concentration Account.
(e) In the event that, notwithstanding the provisions of this Section 2.22, after the occurrence and shall remainduring the continuance of a Cash Dominion Event, under the sole any Loan Party receives or otherwise has dominion and control of any Cash Receipts, proceeds or collections, such Cash Receipts, proceeds, and collections shall be deemed held in trust by the Collateral Loan Parties for the Administrative Agent and, other than cash held in the ordinary course of business consistent with past practices, shall, within one Business Day after receipt, either be deposited into a DDA, a Blocked Account, the Concentration Account, or the Agent’s Account.
(f) The Borrowers shall deliver or shall cause to be delivered to the Administrative Agent accurate reports of all amounts deposited in the Blocked Accounts to ensure the proper transfer of funds as set forth above.
(g) The Borrowers may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to the execution and delivery to the Administrative Agent of appropriate 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.
(h) The Loan Parties Borrowers may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Loan Parties Borrowers for disbursements and payments (including payroll, sales taxes, or withholding taxes) in the ordinary course of business or as otherwise permitted hereunder.
, provided such Disbursement Accounts (bother than accounts specifically designated as and used, exclusively for payroll, sales taxes, or withholding taxes) All cash receipts and other proceeds from are subject to a first priority perfected security interest in favor of 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 Agent for the account benefit of itself and the Secured Parties. The only Disbursement Accounts as of the applicable Loan Party Closing Date are those described 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 otherwiseSchedule 2.22(h) shall, promptly on receipt, be deposited directly in or transferred by ACH or wire transfer to the Concentration Account or a Blocked Accountannexed hereto.
(c) So long as no Cash Dominion Event has occurred and is continuing:
(i) The Agent’s Account shall at all times be under the Loan Parties may direct, sole dominion 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 Collateral Agent. 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 acknowledge and agree 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 puproses 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 (A) a list of all present DDAs maintained by the Loan Parties, which list includes, with respect to each depository (1) the name and address of that depository; (2) the account number(s) maintained with such depository; and (3) to the extent known, a contact person at such depository (the “DDA List”), and (B) notifications (the “Credit Card Notifications”) substantially in the form of Exhibit F hereto (or such other form 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;
(ii) (x) no Loan Party Borrowers shall have any access to or no right of withdrawal from the Concentration Agent’s Account, (y) 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 (zii) the funds on deposit in the Concentration Agent’s Account at any time shall continue to be collateral security for all of the Obligations and (iii) the funds on deposit in the Agent’s Account shall be applied as provided in Section 2.24;2.23(a).
(iiij) Except upon the occurrence and during the continuance of a Cash Dominion Event, neither the Administrative Agent nor the Collateral Agent will furnish any notice or make any request of any depository institution with which any DDA is maintained notwithstanding anything to the contrary contained in any DDA Notification. In the event that the Administrative Agent or Collateral Agent has give a notice to any depository institution with which any DDA or Blocked Account in maintained as contemplated herein and thereafter the applicable Cash Dominion Event ceases to exist, the Collateral Agent or the Administrative Agent’s instruction, as applicable, shall promptly furnish to the Loan Parties shall cause relevant depositary institutions a written notice revoking any prior instruction or direction given by it to such depositary institution.
(k) In the ACH or wire transfer to any Blocked Account or the Concentration Account (whether or not there is then an outstanding balance in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of all available and collected Cash Receipts in each such DDA, provided event that (i) the Administrative Agent shall not require more than one such transfer each day, or the Collateral Agent receives any amounts (ii) to whether in 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 (iii) notwithstanding the foregoing, the Loan Parties need not cause the ACH or wire transfer from a DDA to a Blocked Agent’s Account or the Concentration Account such reasonable amount (based upon prior business practices of the Borrowers but in no event otherwise) pursuant to exceed $150,000.00 in the aggregate or such higher amount as the Administrative Agent 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
(iv) in the event that, notwithstanding the provisions of this Section 2.232.22 at any time when no Credit Extensions are outstanding (or, if Letters of Credit are the Loan Parties receive or otherwise have dominion and control of any such proceeds or collectionsonly Credit Extensions outstanding, such proceeds and collections shall be held in trust by the Loan Parties for Letters of Credit have been fully cash collateralized), then the Administrative Agent and the Collateral Agent shall not be commingled with any of promptly remit such amounts to the Loan Parties’ other funds or deposited in any account of any Loan Party other than as instructed by the Administrative AgentConcentration Account.
Appears in 1 contract
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 or Canada, as applicable, 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 AmericaAmerica or Canada, as applicable. Notwithstanding the foregoing, Cash Receipts from the Loan Parties’ wholesale operations in the United States of America or Canada, as applicable (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 DayDay (or with respect to the Loan Parties situated in Canada, not less frequently than twice each week), 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 puproses 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 (A) a list of all present DDAs maintained by the Loan Parties, which list includes, with respect to each depository (1) the name and address of that depository; (2) the account number(s) maintained with such depository; and (3) to the extent known, a contact person at such depository (the “DDA List”), and (B) notifications (the “Credit Card Notifications”) substantially in the form of Exhibit F hereto (or such other form 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;
(ii) (x) no Loan Party shall have any access to or right of withdrawal from the Concentration Account, (y) 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 Concentration Account shall continue to be collateral security for all of the Obligations and shall be applied as provided in Section 2.24;
(iii) upon the Administrative Agent’s instruction, the Loan Parties shall cause the ACH or wire transfer to any Blocked Account or the Concentration Account (whether or not there is then an outstanding balance in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of all available and collected Cash Receipts in each such DDA, provided that (i) the Administrative Agent shall not require more than one such transfer each day, (ii) 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 (iii) notwithstanding the foregoing, (x) 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 $150,000.00 in the aggregate or such higher amount as the Administrative Agent 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 (y) so long as the Obligations have not been accelerated, the Loan Parties shall not be required to transfer or cause the transfer of any funds on deposit in any Canadian Blocked Account to any United States Blocked Account or the Concentration Account; and
(iv) in the event that, notwithstanding the provisions of this Section 2.232.3,2.23, the Loan Parties receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Loan Parties for the Administrative Agent and shall not be commingled with any of the Loan Parties’ other funds or deposited in any account of any Loan Party other than as instructed by the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Caleres Inc)
Cash Receipts. (i) On or prior to the Closing Date, the Borrower and the Administrative Agent shall have entered into agency agreements with the banks maintaining the deposit accounts identified on Schedule 3.11(b) (collectively, the "BLOCKED ACCOUNTS"), which agreements (the "BLOCKED ACCOUNT AGREEMENTS") shall be 84
(a) (as such procedures may be amended from time to time with the consent of the Administrative Agent)) of all available cash receipts from the sale of Inventory and other assets, all collections of Receivables and other accounts, and all other cash payments received by the Borrower or any other Credit Party from any Person or from any source or on account of any sale or other transaction or event, except only (x) amounts received on account of the Leasehold Collateral and to be applied in accordance with Section 2.10(e) or (f), as applicable, and (y) the proceeds of the Loans (all such non-excluded cash receipts and collections, "CASH RECEIPTS"), from Blocked Accounts to a concentration account maintained by the Collateral Agent at BBNA (the "BBNA CONCENTRATION ACCOUNT"). All Cash Receipts shall be deposited into a Blocked Account or the BBNA Concentration Account in accordance with the Borrower's customary cash deposit procedures outlined in Schedule 2.13
(a) The Collateral Agent Borrower shall maintain account number 5045183372 at Bank of America (the “Concentration Account”). Subject accurately report to the rights Administrative Agent all amounts deposited in the Blocked Accounts to ensure the proper transfer of the Loan Parties funds as set forth below during above. If at any period during time other than the times set forth above any cash or cash equivalents owned by the Borrower or any other Credit 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 may require the Borrower to close such Blocked 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.
(ii) The Borrower may request that the Administrative Agent close Blocked Accounts and/or open new Blocked Accounts (or, in either case, permit the Borrower to do so), subject to the execution and delivery to the Administrative Agent of appropriate Blocked Account Agreements (unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.13 and otherwise satisfactory to the Administrative Agent. Unless consented to in writing by the Administrative Agent, the Borrower and the other Credit Parties may not maintain any bank accounts other than the ones expressly contemplated herein.
(iii) Notwithstanding anything contained herein to the contrary, so long as no Cash Dominion Event default or event of default has occurred and is continuingcontinuing under the Existing Credit Facility on the Closing Date, and all Obligations under the Existing Credit Facility have been paid in full, the Concentration Borrower may utilize up to $25,000,000 in proceeds, if any, remaining in the Tax Refund Account is (as defined in the Existing Credit Facility) and shall remainfrom the Specified Location Sales (as defined in the Existing Credit Facility) (collectively, the "ESCROW PROCEEDS"), other than the Yonkers Location Sale (as defined in the Existing Credit Facility) to pay on or after the Closing Date any costs directly associated with or claims payable under the sole dominion Confirmed Plan; PROVIDED that such funds are held in a segregated account at BBNA and control subject to the Lien of the Collateral Agent. Agent until such application.
(iv) The Loan Parties Borrower may also maintain with the Administrative Agent at BBNA one or more disbursement accounts with a balance at any time not in excess of the amounts set forth on Schedule 2.13(a) (the “Disbursement Accounts”"BBNA DISBURSEMENT ACCOUNTS") to be used by the Loan Parties Borrower for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder; PROVIDED that, upon the occurrence and during the continuance of an Event of Default or an Event of Super-Default, all amounts in such accounts may be swept by the Administrative Agent into the BBNA Cash Concentration Account for application in accordance with Sections 2.14(a), (b) and (c).
(bv) 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 the Borrower may maintain the bank accounts identified on Schedule 3.11(b) as "coin orders accounts" (the "Coin Orders Accounts") from which the Loan Parties’ wholesale operations in the United States of America Borrower shall be permitted (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 so long as no Cash Dominion Default, Event of Default or Event of Super-Default has occurred and is continuing:
) to make cash withdrawals in accordance with its customary procedures as set forth on Schedule 2.13(e) in effect on the date hereof to fund the ordinary-course cash operating needs of its stores (such as change for registers and funds to cash employees' paychecks (otherwise commonly referred to as "coin orders")), provided that all such withdrawals are replaced in accordance with the Borrower's customary practices. Each Coin Orders Account (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 subject to another Blocked Account or a blocked account agreement in form and substance satisfactory to the Concentration Account; and
(ii) the Loan Parties Administrative Agent which shall cause the ACH or wire transfer of all available and collected Cash Receipts provide that any amounts in each such DDA to a Blocked Account or account in excess of the Concentration Account not less frequently than each Business Day, provided that (Aamounts set forth on Schedule 3.11(b) 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 each Business Day on which technical problems do not prevent such transfer to the BBNA Concentration Account and (Bii) notwithstanding the foregoing, the Loan Parties need not cause the ACH or wire transfer from a DDA may be funded with proceeds of Loans otherwise permitted 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 puproses 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 businesshereunder.
(dvi) After Notwithstanding anything in this Agreement to the occurrence and during the continuation of a Cash Dominion Event:
(i) at the request of Administrative Agentcontrary, the Loan Parties shall deliver Borrower's failure to comply with the Administrative Agent (A) a list of all present DDAs maintained by the Loan Parties, which list includes, with respect to each depository (1) the name cash deposit and address of that depository; (2) the account number(s) maintained with such depository; and (3) to the extent known, a contact person at such depository (the “DDA List”), and (B) notifications (the “Credit Card Notifications”) substantially in the form of Exhibit F hereto (or such other form 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;
(ii) (x) no Loan Party shall have any access to or right of withdrawal from the Concentration Account, (y) 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 Concentration Account shall continue to be collateral security for all of the Obligations and shall be applied as provided sweep requirements set forth in Section 2.24;
(iii2.13(a) upon the Administrative Agent’s instructiondue directly to earthquake, the Loan Parties shall cause the ACH or wire transfer to any Blocked Account landslide, hurricane, tornado, fire, flood, material disruption in armored car service, blizzard, act of God or the Concentration Account (whether public enemy, act of war, public disorder, rebellion, sabotage, revolution, epidemic, riot or not there is then an outstanding balance in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of all available and collected Cash Receipts in each such DDA, provided that (i) the Administrative Agent shall not require more than one such transfer each day, (ii) 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 (iii) 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 $150,000.00 in the aggregate or such higher amount as the Administrative Agent 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
(iv) in the event that, notwithstanding the provisions of this Section 2.23, the Loan Parties receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Loan Parties for the Administrative Agent and quarantine shall not be commingled with any an Event of the Loan Parties’ other funds Default or deposited in any account an Event of any Loan Party other than as instructed by the Administrative AgentSuper-Default hereunder unless such failure continues for 3 days.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Bradlees Inc)
Cash Receipts. (a) The Collateral Agent shall maintain account number 5045183372 at Bank of America (the “"B of A 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 B of A 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. Notwithstanding anything in any Loan Document to the contrary, so long as the Obligations have not been accelerated, no Disbursement Accounts, DDAs maintained by any Loan Party in Canada nor credit card processing accounts maintained by any Loan Party in Canada shall be subject to a Blocked Account Agreement or subject to the dominion and control of the Administrative Agent.
(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 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 B of A Concentration Account or a Blocked Account.
(ci) So Except as otherwise provided in subsection (e) below (relating to Canadian Cash Receipts), so long as no Cash Dominion Event has occurred and is continuing:
(iii) 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)Accounts, the Blocked Accounts, the B of A 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 B of A Concentration Account; and
(ii) and 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 B of A 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 B of A 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 puproses 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 (A) a list of all present DDAs maintained by the Loan Parties, which list includes, with respect to each depository (1) the name and address of that depository; (2) the account number(s) maintained with such depository; and (3) to the extent known, a contact person at such depository (the “DDA List”), and (B) notifications (the “Credit Card Notifications”) substantially in the form of Exhibit F hereto (or such other form 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;
(ii) (x) no Loan Party shall have any access to or right of withdrawal from the Concentration Account, (y) 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 Concentration Account shall continue to be collateral security for all of the Obligations and shall be applied as provided in Section 2.24;
(iii) upon the Administrative Agent’s instruction, the Loan Parties shall cause the ACH or wire transfer to any Blocked Account or the Concentration Account (whether or not there is then an outstanding balance in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of all available and collected Cash Receipts in each such DDA, provided that (i) the Administrative Agent shall not require more than one such transfer each day, (ii) 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 (iii) 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 $150,000.00 in the aggregate or such higher amount as the Administrative Agent 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
(iv) in the event that, notwithstanding the provisions of this Section 2.23, the Loan Parties receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Loan Parties for the Administrative Agent and shall not be commingled with any of the Loan Parties’ other funds or deposited in any account of any Loan Party other than as instructed by the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Brown Shoe Co 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 or Canada, as applicable, 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 AmericaAmerica or Canada, as applicable. Notwithstanding the foregoing, Cash Receipts from the Loan Parties’ wholesale operations in the United States of America or Canada, as applicable (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)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 DayDay (or with respect to the Loan Parties situated in Canada, not less frequently than twice each week), 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 puproses 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 (A) a list of all present DDAs maintained by the Loan Parties, which list includes, with respect to each depository (1) the name and address of that depository; (2) the account number(s) maintained with such depository; and (3) to the extent known, a contact person at such depository (the “DDA List”), and (B) deliver to the Administrative Agent notifications (the “Credit Card Notifications”) substantially in the form of Exhibit F G hereto (or such other form 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;
(ii) (x) no Loan Party Borrower shall have any access to or right of withdrawal from the Concentration Account, (y) upon notice to a Blocked Account Bank, no Loan Party Borrower 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 Concentration Account shall continue to be collateral security for all of the Obligations and shall be applied as provided in Section 2.24;
(iii) upon the Administrative Agent’s instruction, the Loan Parties shall cause the ACH or wire transfer to any Blocked Account or the Concentration Account (whether or not there is then an outstanding balance in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of all available and collected Cash Receipts in each such DDA, provided that (i) the Administrative Agent shall not require more than one such transfer each day, (ii) 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 (iii) notwithstanding the foregoing, (x) 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 $150,000.00 in the aggregate or such higher amount as the Administrative Agent 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 (y) so long as the Obligations have not been accelerated, the Loan Parties shall not be required to transfer or cause the transfer of any funds on deposit in any Canadian Blocked Account to any United States Blocked Account or the Concentration Account; and
(iv) in the event that, notwithstanding the provisions of this Section 2.23, the Loan Parties receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Loan Parties for the Administrative Agent and shall not be commingled with any of the Loan Parties’ other funds or deposited in any account of any Loan Party other than as instructed by the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Brown Shoe Co Inc)
Cash Receipts. (a) The Collateral Annexed hereto as Schedule 2.22(a) is a list of all present DDAs, which Schedule includes, with respect to each depository (i) the name and address of that depository; (ii) the account number(s) maintained with such depository; and (iii) to the extent known, a contact person at such depository.
(b) Annexed hereto as Schedule 2.22(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 charges for sales by any Borrower.
(c) On or prior to the Closing Date, the Borrowers shall (i) deliver to the Administrative Agent notifications executed on behalf of the Borrowers to each depository institution with which any DDA is maintained in form satisfactory to the Administrative Agent, of the Administrative Agent's interest in such DDA (each, 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 the Borrowers shall maintain account number 5045183372 at Bank of America use commercially reasonable efforts to cause each such Credit Card Notification (or another form reasonably acceptable to the Administrative Agent) to be signed, acknowledged and agreed to by the applicable credit card clearinghouses and processors within fifteen (15) days after the Closing Date), 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 “Concentration Account”). Subject "Blocked Account Agreements") shall be in form and substance satisfactory to the rights of the Loan Parties set forth below during any period during which no Administrative Agent. The DDA Notifications, Credit Card Notifications and Blocked Account Agreements shall require, unless a Cash Dominion Release Event has occurred and is continuing, the sweep on each Business Day of all available cash receipts 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 from any source or on account of any sale or other transaction or event (including, without limitation, any casualty and condemnation proceeds and proceeds from any equity issuances) (all such cash receipts and collections, "Cash Receipts"), to a concentration account maintained by the Collateral Agents at Fleet (the "FRF Concentration Account"). In that regard, unless a Cash Dominion Release Event has occurred and is continuing, the Borrowers shall cause the ACH or wire transfer to 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 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 other DDA; and (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 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 $2,500, as may be required to be maintained in the subject Blocked Account by the bank at which such Blocked Account is and shall remainmaintained. In the event that, under notwithstanding the sole provisions of this Section 2.22, the Borrowers receive or otherwise have dominion and control of any such proceeds or collections, unless a Cash Dominion Release Event has occurred and is continuing, such proceeds and collections shall be held in trust by the Collateral 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 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 during the 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 Fleet 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 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 Sections 6.01(a)(x) and 6.01(a)(xi)) 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 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 Loan Parties Borrowers may also maintain with the Administrative Agent at Fleet one or more disbursement accounts (the “"Fleet Disbursement Accounts”") to be used by the Loan Parties 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 Closing Date are those described in Schedule 2.22(f).
(bg) All cash receipts The FRF Concentration Account is, and other proceeds from shall remain, under 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 sole dominion and proceeds, “Cash Receipts”) shall be deposited into one or more DDAs established for the account control of the applicable Loan Party in the United States of AmericaCollateral Agents. 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 Each Borrower acknowledges and is continuing:
agrees that (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 Borrower has 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 puproses 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 (A) a list of all present DDAs maintained by the Loan Parties, which list includes, with respect to each depository (1) the name and address of that depository; (2) the account number(s) maintained with such depository; and (3) to the extent known, a contact person at such depository (the “DDA List”), and (B) notifications (the “Credit Card Notifications”) substantially in the form of Exhibit F hereto (or such other form 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;
(ii) (x) no Loan Party shall have any access to or right of withdrawal from the FRF Concentration Account, (y) 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 (zii) the funds on deposit in the FRF Concentration Account shall continue to be collateral security for all of the Obligations and (iii) the funds on deposit in the FRF Concentration Account shall be applied as provided in Section 2.24;
(iii) upon the Administrative Agent’s instruction, the Loan Parties shall cause the ACH or wire transfer to any Blocked Account or the Concentration Account (whether or not there is then an outstanding balance in the Loan Account, unless the Commitments have been terminated hereunder and the Obligations have been paid in full) of all available and collected Cash Receipts in each such DDA, provided that (i) the Administrative Agent shall not require more than one such transfer each day, (ii) 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 (iii) 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 $150,000.00 in the aggregate or such higher amount as the Administrative Agent 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
(iv) in the event that, notwithstanding the provisions of this Section 2.23, the Loan Parties receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Loan Parties for the Administrative Agent and shall not be commingled with any of the Loan Parties’ other funds or deposited in any account of any Loan Party other than as instructed by the Administrative Agent2.23(a).
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Samples: Credit Agreement (Tweeter Home Entertainment Group 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) Following the Loan Parties may directClosing, Purchaser and Seller shall have sole control overreport to each other, with reasonable supporting detail, within 3 business days following the manner end of disposition each calendar week, of its all 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 received in respect of DDA Accounts, Blocked Accounts the Retained Receivables and Disbursement Accounts, provided that in the case of a closure of a Blocked Account, the funds on deposit therein Finance Leases during such month. Purchaser shall promptly pay over to Seller any amounts received by it which are properly allocable to Retained Receivables or Finance Leases owned by Seller; and Seller shall promptly pay over to Purchaser any amounts received by it which are properly allocable to accounts receivable or leases not constituting Retained Receivables or Finance Leases. All amounts payable pursuant to this Section 2.C. shall be transferred paid within 3 days following the end of the calendar week referred to another Blocked Account or above, and thereafter shall bear interest at the Concentration Account; and90-day Treasury Rate in effect as of such calendar month end, plus 1%.
(ii) the Loan Parties shall cause the ACH Any amounts received by Purchaser or wire transfer of all available and collected Cash Receipts in each such DDA Seller from a customer which has outstanding amounts owing pursuant to a Blocked Account both one or the Concentration Account not less frequently than each Business Daymore Retained Receivables and/or Finance Leases, provided that (A) to the extent that on any Business Day technical problems prevent any such ACH as well as receivables or wireleases owned by Purchaser, such funds shall be transferred on the next following Business Day on which technical problems do handled as follows if they are not prevent such transfer designated for, and (B) notwithstanding the foregoingcannot otherwise be designated to, 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 puproses of the calculation of the amount on deposit in any single DDA (or in any subaccount of a DDA), there specific invoice: Such amounts 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 applied on a Cash Dominion Event:
(i) at the request of Administrative Agent, the Loan Parties shall deliver to the Administrative Agent (A) a list of all present DDAs maintained by the Loan Parties, which list includes, with respect to each depository (1) the name and address of that depository; (2) the account number(s) maintained with such depository; and (3) to the extent known, a contact person at such depository (the “DDA List”), and (B) notifications (the “Credit Card Notifications”) substantially in the form of Exhibit F hereto (or such other form 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;
(ii) (x) no Loan Party shall have any access to or right of withdrawal from the Concentration Account, (y) 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 Concentration Account shall continue to be collateral security for proportional basis over all of the Obligations and obligations of such customer (with such amounts applied, as to each contract, first to the earliest claim under each rental or lease agreement). Any amounts received by Purchaser or Seller which constitute partial payment of an invoice which reflects both one or more Retained Receivables and/or Finance Leases, as well as receivables or leases owned by Purchaser, shall be applied as provided in Section 2.24;to the amounts owed to Purchaser and Seller on a basis proportional to the amounts due to each on the invoice.
(iii) upon Seller and Purchaser shall each make prompt reimbursement to the Administrative Agent’s instructionother, the Loan Parties shall cause the ACH or wire transfer as may be required to any Blocked Account or the Concentration Account (whether or not there is then an outstanding balance correct a payment previously made, in the Loan Accountevent: (a) any amount is required by law to be refunded to the customer or its legal representative, unless after the Commitments have been terminated hereunder and the Obligations have relevant receipt has been paid in full) of all available and collected Cash Receipts in each such DDA, provided that (i) the Administrative Agent shall not require more than one such transfer each day, (ii) over to Purchaser or Seller pursuant to the extent that on foregoing; or (b) 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 (iii) 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 $150,000.00 in the aggregate or such higher amount incorrect payment is made between them as the Administrative Agent 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 result of business; and
(iv) in the event that, notwithstanding the provisions of this Section 2.23, the Loan Parties receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Loan Parties for the Administrative Agent and shall not be commingled with any of the Loan Parties’ other funds or deposited in any account of any Loan Party other than as instructed by the Administrative Agenta computational error.
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