Collection of Accounts Receivable; Management of Collateral. (a) The Parent and its Subsidiaries shall assist the Administrative Agent in (i) during the term of this Agreement, maintaining one or more lockboxes identified on Schedule 8.01 hereto (collectively, the “Lockboxes”) with the financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower and reasonably acceptable to the Administrative Agent in its sole discretion (each being referred to as an “Account Control Bank”), and (ii) during the term of this Agreement, maintaining deposit accounts (each, a “Control Account” and, collectively, the “Control Accounts”) with each Account Control Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its Account Debtors and Credit Card Processors, with respect to Accounts Receivable of the Borrower, to remit all payments to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that the Parent and its Subsidiaries shall not be required to so instruct an Account Debtor if (i) the aggregate amount of the Accounts Receivable related to such Account Debtor was less than $25,000 during the most recently ended 12 month period, and (ii) the aggregate amount of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month period. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by the Parent or any of its Subsidiaries from any Account Debtor, as proceeds from their Accounts Receivable, or as proceeds of any other Collateral, shall be promptly deposited by the Parent or such Subsidiaries in original form into a Control Account. (b) Each Account Control Bank shall establish and maintain Account Control Agreements regarding the Control Accounts with the Administrative Agent and the applicable Loan Party, in form and substance reasonably acceptable to the Agents; provided that the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition of the funds in the applicable Control Account without further consent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) of the proviso in the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required Lenders. No checks, drafts or other instruments received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such checks, drafts or instruments have actually been collected. (c) [Intentionally Omitted]. (d) [Intentionally Omitted]. (e) [Intentionally Omitted]. (f) [Intentionally Omitted]. (g) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies of the Agents and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by law.
Appears in 1 contract
Collection of Accounts Receivable; Management of Collateral. (a) The Parent After the occurrence and its Subsidiaries shall assist the Administrative Agent in (i) during the term continuance of this Agreement, maintaining one or more lockboxes identified on Schedule 8.01 hereto (collectivelyan Event of Default, the “Lockboxes”) Collateral Agent may send a notice of assignment and/or notice of the Lenders’ security interest to any and all Account Debtors or third parties holding or otherwise concerned with any of the financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower and reasonably acceptable to the Administrative Agent in its sole discretion (each being referred to as an “Account Control Bank”)Collateral, which notice shall comply with any applicable legal requirements, and (ii) during thereafter the term of this Agreement, maintaining deposit accounts (each, a “Control Account” and, collectively, Collateral Agent shall have the “Control Accounts”) with each Account Control Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating sole right to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its Account Debtors and Credit Card Processors, with respect to Accounts Receivable of the Borrower, to remit all payments to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that the Parent and its Subsidiaries shall not be required to so instruct an Account Debtor if (i) the aggregate amount of collect the Accounts Receivable related to such and/or take possession of the Collateral and the books and records relating thereto, upon compliance with mandatory legal procedures, if required under the applicable laws. The Loan Parties shall not, without prior written consent of the Collateral Agent, grant any extension of time of payment of any Account Debtor was Receivable, compromise or settle any Account Receivable for less than $25,000 during the most recently ended 12 month periodfull amount thereof, and (ii) release, in whole or in part, any Person or property liable for the aggregate amount payment thereof, or allow any credit or discount whatsoever thereon, except, in the absence of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month period. All checks, drafts, notes, money orders, acceptances, cash and other evidences a continuing Event of Indebtedness received directly by the Parent or any of its Subsidiaries from any Account DebtorDefault, as proceeds from their Accounts Receivable, or as proceeds of any other Collateral, shall be promptly deposited permitted by the Parent or such Subsidiaries in original form into a Control AccountSection 7.02(a).
(b) Each Account Control Bank shall establish and maintain Account Control Agreements regarding the Control Accounts with the Administrative Loan Party hereby appoints each Agent and the applicable Loan Party, in form and substance reasonably acceptable to the Agents; provided that or its designee on behalf of such Agent as the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement Parties’ attorney-in-fact with respect thereto; provided further that power exercisable during the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition continuance of the funds in the applicable Control Account without further consent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) of the proviso in the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred to endorse any Loan Party’s name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Accounts Receivable, to sign any Loan Party’s name on any invoice or bxxx of lading relating to any of the Accounts Receivable, drafts against Account Debtors with respect to Accounts Receivable, assignments and is continuing. Once an Event verifications of Default has occurred Accounts Receivable and is continuingnotices to Account Debtors with respect to Accounts Receivable, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Noticesend verification of Accounts Receivable, and (y) Administrative to notify the Postal Service authorities to change the address for delivery of mail addressed to any Loan Party to such address as such Agent may designate and to do all other acts and things necessary to carry out this Agreement. The aforementioned covenant shall issue a Triggering Event Notice upon not be applicable with regard to the Loan Parties incorporated in the United Mexican States, provided, however, that at the request of the Required Lenders. No checksCollateral Agent, drafts or other instruments received the Loan Parties incorporated under the laws of the United Mexican States shall grant a power of attorney to the individuals designated by the Administrative Collateral Agent, and in the terms requested by the Collateral Agent in accordance with Mexican law. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designee shall constitute not be liable for any acts of omission or commission (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final payment to judgment of a court of competent jurisdiction), or for any error of judgment or mistake of fact or law; this power being coupled with an interest is irrevocable until all of the Administrative Agent unless Loans, and until such checks, drafts or instruments have actually been collectedother Obligations under the Loan Documents are paid in full and all of the Loan Documents are terminated.
(c) [Intentionally Omitted]Nothing herein contained shall be construed to constitute any Agent as agent of any Loan Party for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by any Loan Party of any of the terms and conditions thereof.
(d) [Intentionally Omitted]If any Account Receivable includes a charge for any tax payable to any Governmental Authority, each Agent is hereby authorized (but in no event obligated) in its discretion to pay the amount thereof to the proper taxing authority for the Loan Parties’ account and to charge the Loan Parties therefor. The Loan Parties shall notify the Agents if any Account Receivable includes any taxes due to any such Governmental Authority and, in the absence of such notice, the Agents shall have the right to retain the full proceeds of such Account Receivable and shall not be liable for any taxes that may be due by reason of the sale and delivery creating such Account Receivable.
(e) [Intentionally Omitted].
(f) [Intentionally Omitted].
(g) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies of the Agents and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by law.
Appears in 1 contract
Collection of Accounts Receivable; Management of Collateral. (a) The Parent and its Subsidiaries Within thirty (30) days after the Closing Date, the Borrower shall assist the Administrative Agent in (i) establishing, and, during the term of this Agreement, maintaining one or more lockboxes identified on Schedule 8.01 hereto in the name of the Administrative Agent (collectively, the “"Lockboxes”") with the financial institutions set forth on Schedule 8.01 hereto one or such other more financial institutions selected by the Borrower and reasonably acceptable to the Administrative Agent in its sole discretion (each being referred to as an “Account Control a "Lockbox Bank”"), and (ii) establishing, and during the term of this Agreement, maintaining deposit accounts an account (each, a “Control "Collection Account” " and, collectively, the “Control "Collection Accounts”") in the name of the Administrative Agent with each Account Control Lockbox Bank. The Parent Borrower and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries each Surety shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its Account Debtors and Credit Card ProcessorsDebtors, with respect to Accounts Receivable of the BorrowerBorrower and each Surety, to remit all payments payment to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account payments as directed by the Administrative Agent and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Collection Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that . Until the Parent Administrative Agent has advised the Borrower to the contrary after the occurrence and its Subsidiaries shall not be required to so instruct during the continuance of an Account Debtor if (i) Event of Default, the aggregate amount of Borrower and each Surety may and will enforce, collect and receive all amounts owing on the Accounts Receivable related to of the Borrower and each such Account Debtor was less than $25,000 Surety for the Administrative Agent's benefit and on the Administrative Agent's behalf, but at the Borrower's expense; such privilege shall terminate, at the election of any Agent, upon the occurrence and during the most recently ended 12 month period, and (ii) the aggregate amount continuance of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month periodany Event of Default. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness Debt received directly by the Parent or any of its Subsidiaries Borrower and each such Surety from any Account Debtor, as proceeds from their Accounts ReceivableReceivable of the Borrower and each such Surety, or as proceeds of any other Collateral, shall be promptly held by the Borrower and each such Surety in trust for the Agents and the Lenders and upon receipt be deposited by the Parent or Borrower and each such Subsidiaries Surety in original form and no later than the next Business Day after receipt thereof into a Control Collection Account.
(b) Each Account Control Bank . The Borrower and each such Surety shall establish and maintain Account Control Agreements regarding the Control Accounts not commingle such collections with the Borrower's or such Surety's own funds or the funds of any other Subsidiary or Affiliate of the Borrower or with the proceeds of any assets not included in the Collateral. The Administrative Agent and shall charge the applicable Loan PartyAccount on the last day of each month with two (2) collection days for all such collections. All funds received in the Collection Account shall be sent by wire transfer or Automated Clearing House, in form and substance reasonably acceptable Inc. payment to the Agents; provided that the Loan Parties may have investments in an aggregate amount not Payment Office to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition of the funds in the applicable Control Account without further consent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account be credited to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) 's Account for application at the end of each Business Day to reduce the then principal balance of the proviso in Revolving Loans, conditional upon final payment to the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required LendersAgent. No checks, drafts or other instruments instrument received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such checks, drafts or instruments have actually been collected.
(b) After the occurrence and during the continuance of an Event of Default, any Agent may send a notice of assignment and/or notice of the Lenders' security interest to any and all Account Debtors or third parties holding or otherwise concerned with any of the Collateral, and thereafter the Agents shall have the sole right to collect the Accounts Receivable and/or take possession of the Collateral and the books and records relating thereto. The Borrower and the Sureties shall not, without prior written consent of the Agents, grant any extension of time of payment of any Account Receivable, compromise or settle any Account Receivable for less than the full amount thereof, release, in whole or in part, any Person or property liable for the payment thereof, or allow any credit or discount whatsoever thereon, except, in the absence of a continuing Event of Default, as permitted by Section 7.21 and except with respect to amounts less than $100,000 for any Account Debtor and $500,000 for all Account Debtors, in each case for the term of this Agreement.
(c) [Intentionally Omitted]The Borrower and each Surety hereby appoints each Agent or its designee on behalf of such Agent as the Borrower's and such Surety's attorney-in-fact with power exercisable during the continuance of any Event of Default to endorse the Borrower's or such Surety's name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Accounts Receivable, to sign the Borrower's or such Surety's name on any invoice or bill xx lading relating to any of the Accounts Receivable, drafts against Account Debtors with respect to Accounts Receivable, assignments and verifications of Accounts Receivable and notices to Account Debtors with respect to Accounts Receivables, to send verification of Accounts Receivable, and, to notify the Postal Service authorities to change the address for delivery of mail addressed to the Borrower or such Surety to such address as such Agent may designate and to do all other acts and things necessary to carry out this Agreement. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designee shall not be liable for any acts of omission or commission (other than acts or omissions constituting gross negligence or willful misconduct), or for any error of judgment or mistake of fact or law; this power being coupled with an interest is irrevocable until all of the Loans and other Obligations under the Loan Documents are paid in full and all of the Commitments are terminated.
(d) [Intentionally Omitted]Nothing herein contained shall be construed to constitute any Agent as agent of the Borrower or any Surety for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts or omissions of the Agents constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts or omissions of the Agents constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by the Borrower or any Surety of any of the terms and conditions thereof.
(e) [Intentionally Omitted]If any Account Receivable includes a charge for any tax payable to any Official Body, the Agents are hereby authorized (but in no event obligated) in their discretion to pay the amount thereof to the proper taxing authority for the Borrower's account and to charge the Borrower therefor. The Borrower shall notify the Agents if any Account Receivable includes any taxes due to any such Official Body and, in the absence of such notice, the Agents shall have the right to retain the full proceeds of such Account Receivable and shall not be liable for any taxes that may be due by reason of the sale and delivery creating such Account Receivable.
(f) [Intentionally Omitted].
(g) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies of the Agents and the Lenders herein provided, and the obligations of the Loan Parties Borrower and each Surety set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by law.
Appears in 1 contract
Samples: Credit Agreement (Pen Holdings Inc)
Collection of Accounts Receivable; Management of Collateral. (a) The Parent On or prior to the Effective Date, the Borrower and its Subsidiaries the Domestic Guarantors shall assist the Administrative Agent in (i) establishing, and, during the term of this Agreement, maintaining one or more lockboxes identified on Schedule 8.01 hereto (collectively, the “"Lockboxes”") with the financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower and reasonably acceptable to approved by the Administrative Agent in its sole discretion (which approval shall not be unreasonably withheld) (each being referred to as an “Account Control a "Lockbox Bank”"), and (ii) establishing, and during the term of this Agreement, maintaining deposit accounts an account (each, a “Control the "Collection Account” and, collectively, the “Control Accounts”") with each Account Control BankLockbox Bank as set forth on Schedule 8.01. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative Agent, Borrower and the Account Control Bank. The Parent and its Subsidiaries Domestic Guarantors shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its their Account Debtors and Credit Card ProcessorsDebtors, with respect to Accounts Receivable of the BorrowerBorrower and the Domestic Guarantors, to remit all payments to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account as directed by the Administrative Agent and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Collection Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that . Until the Parent Administrative Agent has advised the Borrower to the contrary after the occurrence and its Subsidiaries shall not be required to so instruct during the continuance of an Account Debtor if (i) Event of Default, the aggregate amount of Borrower and the Domestic Guarantors may and will enforce, collect and receive all amounts owing on the Accounts Receivable related to of the Borrower and such Account Debtor was less than $25,000 Domestic Guarantors for the Administrative Agent's benefit and on the Administrative Agent's behalf, but at the Borrower's expense; such privilege shall terminate, at the election of any Agent, upon the occurrence and during the most recently ended 12 month period, and (ii) the aggregate amount continuance of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month periodan Event of Default. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by the Parent Borrower or any of its Subsidiaries Domestic Guarantor from any Account Debtor, as proceeds from their Accounts ReceivableReceivable of the Borrower or such Domestic Guarantor, or as proceeds of any other Collateral, shall be promptly held by the Borrower or such Domestic Guarantor in trust for the Agents and the Lenders and upon receipt be deposited by the Parent Borrower or such Subsidiaries Domestic Guarantor in original form and no later than the next Business Day after receipt thereof into a Control Collection Account.
(b) Each Account Control Bank . Neither the Borrower nor any Domestic Guarantor shall establish and maintain Account Control Agreements regarding the Control Accounts commingle such collections with the Administrative Agent and Borrower's or such Domestic Guarantor's (as the applicable Loan Partycase may be) own funds or the funds of any Subsidiary or Affiliate of the Borrower or such Domestic Guarantor (as the case may be) or with the proceeds of any assets not included in the Collateral, in form and substance reasonably acceptable each case other than with respect to the Agents; provided that funds sent to the Loan Parties may have investments in an aggregate amount not Borrower pursuant to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among Section 8.01(b) and other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition of than the funds in the applicable Control Deposit Accounts of the Borrower that will perform the cash management functions currently performed by Bank Mendes Gans. All funds received in the Collection Account without further consent by the applicable Loan Partyshall be sent bx xxre transfer or Automated Clearing House, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for Inc. payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account Payment Office to be credited to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) 's Account for application at the end of each Business Day to reduce the then principal balance of the proviso in Revolving Loans, conditional upon final payment to the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required LendersAgent. No checks, drafts or other instruments received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such checks, drafts or instruments have actually been collected.
(b) All funds (other the proceeds of dividends, loans, or advances that are permitted to be made by the Borrower to the Parent pursuant to the express provisions of Section 7.02(h)), received by the Parent in its Deposit Account at Bank Mendes Gans shall be sent no later than the next Business Day after receipt xxxreof to the Borrower for deposit into the Collection Account. On or before the date that is 90 days after the Effective Date (or such longer period as the Collateral Agent shall reasonably agree), the Parent shall have closed its Deposit Account at Bank Mendes Gans and shall have transferred all cash management functions xxxformed by Bank Mendes Gans to one or more Deposit Accounts of the Borrower that are subjxxx to Control Agreements in favor of the Collateral Agent.
(c) [Intentionally Omitted]After the occurrence and during the continuance of an Event of Default, the Collateral Agent may, and at the request of the Administrative Agent or the Required Lenders, the Collateral Agent shall, send a notice of assignment or notice of the Lenders' security interest to any and all Account Debtors and, thereafter, the Collateral Agent shall have the sole right to collect the Accounts Receivable and payment intangibles of the Borrower and the Domestic Guarantors or take possession of the Collateral and the books and records relating thereto. After the occurrence and during the continuation of an Event of Default, the Borrower and the Domestic Guarantors shall not, without prior written consent of the Agents, grant any extension of time of payment of any Account Receivable or payment intangible, compromise or settle any Account Receivable or payment intangible for less than the full amount thereof, release, in whole or in part, any Person or property liable for the payment thereof, or allow any credit or discount whatsoever thereon.
(d) [Intentionally Omitted]The Borrower and each Domestic Guarantor hereby appoints each Agent or its designee on behalf of such Agent as the Borrower's and such Domestic Guarantor's attorney-in-fact provided that each Agent agrees not to exercise such power except upon the occurrence and during the continuance of an Event of Default to (i) endorse the Borrower's or such Domestic Guarantor's name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Accounts Receivable or payment intangibles of the Borrower or such Domestic Guarantor, (ii) sign the Borrower's or such Domestic Guarantor's name on any invoice or bill of lading relating to any of the Accounts Receivable or payment xxtangibles of the Borrower or such Domestic Guarantor, drafts against Account Debtors with respect to Accounts Receivable or payment intangibles of the Borrower or such Domestic Guarantor, assignments and verifications of Accounts Receivable or payment intangibles and notices to Account Debtors with respect to Accounts Receivable or payment intangibles of the Borrower or such Domestic Guarantor, (iii) send verification of Accounts Receivable of the Borrower or such Domestic Guarantor, and (iv) notify the Postal Service authorities to change the address for delivery of mail addressed to the Borrower or such Domestic Guarantor to such address as such Agent may designate and to do all other acts and things necessary to carry out this Agreement; provided that such Agent or designees shall use reasonable efforts to simultaneously provide a copy of such notification to the Borrower or such Domestic Guarantor (it being understood that failure of such Agent or designee to provide such notice to the Borrower shall not result in liability to such Agent or designee hereunder). All acts of said attorney or designee are hereby ratified and approved, and said attorney or designee shall not be liable for any acts of omission or commission (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction), or for any error of judgment or mistake of fact or law; this power being coupled with an interest is irrevocable until all of the Loans and other Obligations under the Loan Documents are paid in full and all of the Commitments are terminated.
(e) [Intentionally Omitted]Nothing herein contained shall be construed to constitute any Agent as agent of the Borrower or any Domestic Guarantor for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts of omission or commission constituting gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable of the 100 Borrower or the Domestic Guarantors or any instrument received in payment thereof or for any damage resulting therefrom (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by the Borrower or any Domestic Guarantor of any of the terms and conditions thereof.
(f) [Intentionally Omitted]If any Account Receivable of the Borrower or any Domestic Guarantor includes a charge for any tax payable to any Governmental Authority, each Agent is hereby authorized (but in no event obligated) in its discretion to pay the amount thereof to the proper taxing authority for the Borrower's account and to charge the Borrower therefor. The Borrower and the Domestic Guarantors shall notify the Agents if any Account Receivable of the Borrower or the Domestic Guarantors includes any taxes due to any such Governmental Authority and, in the absence of such notice, the Agents shall have the right to retain the full proceeds of such Account Receivable and shall not be liable for any taxes that may be due by reason of the sale and delivery creating such Account Receivable.
(g) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies of the Agents and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by law.
Appears in 1 contract
Samples: Financing Agreement (PRG Schultz International Inc)
Collection of Accounts Receivable; Management of Collateral. (a) The Parent After the occurrence and its Subsidiaries shall assist the Administrative Agent in (i) during the term continuance of this Agreement, maintaining one or more lockboxes identified on Schedule 8.01 hereto (collectivelyan Event of Default, the “Lockboxes”) Lender may send a notice of assignment and/or notice of the Lender's security interest to any and all Account Debtors or third parties holding or otherwise concerned with any of the financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower and reasonably acceptable to the Administrative Agent in its sole discretion (each being referred to as an “Account Control Bank”)Collateral, and (ii) during thereafter the term of this Agreement, maintaining deposit accounts (each, a “Control Account” and, collectively, Lender shall have the “Control Accounts”) with each Account Control Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating sole right to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its Account Debtors and Credit Card Processors, with respect to Accounts Receivable of the Borrower, to remit all payments to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that the Parent and its Subsidiaries shall not be required to so instruct an Account Debtor if (i) the aggregate amount of collect the Accounts Receivable related to and/or take possession of the Collateral and the books and records relating thereto. Neither the Parent nor the Borrower shall, and neither such Person shall permit its Subsidiaries to, without prior written consent of the Lender, grant any extension of time of payment of any Account Debtor was Receivable, compromise or settle any Account Receivable for less than $25,000 during the most recently ended 12 month periodfull amount thereof, and (ii) release, in whole or in part, any Person or property liable for the aggregate amount payment thereof, or allow any credit or discount whatsoever thereon, except, in the absence of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month period. All checks, drafts, notes, money orders, acceptances, cash and other evidences a continuing Event of Indebtedness received directly by the Parent or any of its Subsidiaries from any Account DebtorDefault, as proceeds from their Accounts Receivable, or as proceeds of any other Collateral, shall be promptly deposited permitted by the Parent or such Subsidiaries in original form into a Control AccountSection 6.02(o).
(b) Each Account Control Bank shall establish and maintain Account Control Agreements regarding Loan Party hereby appoints the Control Accounts with Lender or its designee on behalf of the Administrative Agent and the applicable Lender as such Loan Party, in form and substance reasonably acceptable to 's attorney-in-fact with power exercisable during the Agents; provided that the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in continuance of any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition of the funds in the applicable Control Account without further consent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) of the proviso in the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred to endorse such Loan Party's name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Accounts Receivable, to sign such Loan Party's name on any invoice or xxxx of lading relating to any of the Accounts Receivable, drafts against Account Debtors with respect to Accounts Receivable, assignments and is continuingverifications of Accounts Receivable and notices to Account Debtors with respect to Accounts Receivable, to send verification of Accounts Receivable, and, to notify the Postal Service authorities to change the address for delivery of mail addressed to such Loan Party or any of its Subsidiaries to such address as the Lender may designate and to do all other acts and things necessary to carry out this Agreement. Once an Event All acts of Default has occurred said attorney or designee are hereby ratified and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Noticeapproved, and said attorney or designate shall not be liable for any acts of omission or commission (y) Administrative Agent shall issue a Triggering Event Notice upon the request other than acts or omissions constituting gross negligence or willful misconduct), or for any error of judgment or mistake of fact or law; this power being coupled with an interest is irrevocable until all of the Required Lenders. No checks, drafts or Loans and other instruments received by Obligations under the Administrative Agent shall constitute final payment to Loan Documents are paid in full and all of the Administrative Agent unless and until such checks, drafts or instruments have actually been collectedLoan Documents are terminated.
(c) [Intentionally Omitted]Nothing herein contained shall be construed to constitute the Lender as agent of the Parent or any Subsidiary for any purpose whatsoever, and the Lender shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts or omissions of the Lender constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Lender shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts or omissions of the Lender constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Lender, by anything herein or in any assignment or otherwise, does not assume any of the obligations under any contract or agreement assigned to the Lender and shall not be responsible in any way for the performance by the Parent or any Subsidiary of any of the terms and conditions thereof.
(d) [Intentionally Omitted].
If any Account Receivable includes a charge for any tax payable to any Governmental Authority, the Lender is hereby authorized (ebut in no event obligated) [Intentionally Omitted].
(f) [Intentionally Omitted].
(g) Notwithstanding in its discretion to pay the amount thereof to the proper taxing authority for the applicable Loan Party's account and to charge the Borrower therefor. The Borrower shall notify the Lender if any other terms set forth Account Receivable includes any taxes due to any such Governmental Authority and, in the Loan Documentsabsence of such notice, the rights Lender shall have the right to retain the full proceeds of such Account Receivable and remedies shall not be liable for any taxes that may be due by reason of the Agents sale and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by lawdelivery creating such Account Receivable.
Appears in 1 contract
Samples: Financing Agreement (Innovative Clinical Solutions LTD)
Collection of Accounts Receivable; Management of Collateral. (a) The Parent After the occurrence and during the continuance of an Event of Default, the Collateral Agent may send a notice of assignment and/or notice of the Lenders’ security interest to any and all Account Debtors and, thereafter, the Collateral Agent shall have the sole right to collect the Accounts Receivable and payment intangibles of the Borrower and its Subsidiaries and/or take possession of the Collateral and the books and records relating thereto. After the occurrence and during the continuation of an Event of Default, the Borrower and its Subsidiaries shall assist not, without prior written consent of the Administrative Collateral Agent, grant any extension of time of payment of any Account Receivable or payment intangible, compromise or settle any Account Receivable or payment intangible for less than the full amount thereof, release, in whole or in part, any Person or property liable for the payment thereof, or allow any credit or discount whatsoever thereon.
(b) The Borrower hereby appoints each Agent in or its designee on behalf of such Agent as the Borrower’s attorney-in-fact with power exercisable during the continuance of an Event of Default to (i) during endorse the term Borrower’s name upon any notes, acceptances, checks, drafts, money orders or other evidences of this Agreement, maintaining one or more lockboxes identified on Schedule 8.01 hereto (collectively, the “Lockboxes”) with the financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower and reasonably acceptable payment relating to the Administrative Agent in its sole discretion (each being referred to as an “Account Control Bank”)Accounts Receivable or payment intangibles of the Borrower, and (ii) during sign the term Borrower’s name on any invoice or xxxx of this Agreement, maintaining deposit accounts (each, a “Control Account” and, collectively, the “Control Accounts”) with each Account Control Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements lading relating to any of the Control Accounts with Receivable or payment intangibles of the applicable Loan PartyBorrower, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its drafts against Account Debtors and Credit Card Processors, with respect to Accounts Receivable or payment intangibles of the Borrower, assignments and verifications of Accounts Receivable or payment intangibles and notices to Account Debtors with respect to Accounts Receivable or payment intangibles of the Borrower, (iii) send verification of Accounts Receivable of the Borrower, and (iv) after the occurrence and during the continuation of an Event of Default, notify the Postal Service authorities to remit all payments to be made by checks or other drafts change the address for delivery of mail addressed to the Lockboxes Borrower to such address as such Agent may designate and to remit do all payments other acts and things necessary to be made by wire transfer carry out this Agreement. All acts of said attorney or by Automated Clearing Housedesignee are hereby ratified and approved, Inc. payment to a Control Account and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that the Parent and its Subsidiaries said attorney or designee shall not be required to so instruct an Account Debtor if liable for any acts of omission or commission (i) the aggregate amount other than acts of the Accounts Receivable related to such Account Debtor was less than $25,000 during the most recently ended 12 month period, and (ii) the aggregate amount omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month period. All checks, drafts, notes, money orders, acceptances, cash and other evidences a court of Indebtedness received directly by the Parent or any of its Subsidiaries from any Account Debtor, as proceeds from their Accounts Receivablecompetent jurisdiction), or as proceeds for any error of any judgment or mistake of fact or law; this power being coupled with an interest is irrevocable until the Term Loan and all other Collateral, shall be promptly deposited by the Parent or such Subsidiaries in original form into a Control Account.
(b) Each Account Control Bank shall establish and maintain Account Control Agreements regarding the Control Accounts with the Administrative Agent and the applicable Loan Party, in form and substance reasonably acceptable to the Agents; provided that Obligations under the Loan Parties may have investments Documents are paid in an aggregate amount not to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition of the funds in the applicable Control Account without further consent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) of the proviso in the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required Lenders. No checks, drafts or other instruments received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such checks, drafts or instruments have actually been collectedfull.
(c) [Intentionally Omitted]Nothing herein contained shall be construed to constitute any Agent as agent of the Borrower for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable of the Borrower or any instrument received in payment thereof or for any damage resulting therefrom (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
(d) [Intentionally Omitted]If any Account Receivable of the Borrower includes a charge for any tax payable to any Governmental Authority, each Agent is hereby authorized (but in no event obligated) in its discretion to pay the amount thereof to the proper taxing authority for the Borrower’s account and to charge the Borrower therefor. The Borrower shall notify the Agents if any Account Receivable of the Borrower includes any taxes due to any such Governmental Authority and, in the absence of such notice, the Agents shall have the right to retain the full proceeds of such Account Receivable and shall not be liable for any taxes that may be due by reason of the sale and delivery creating such Account Receivable.
(e) [Intentionally Omitted].
(f) [Intentionally Omitted].
(g) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies of the Agents and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by law.
Appears in 1 contract
Collection of Accounts Receivable; Management of Collateral. (a) The Parent On or prior to the Initial Advance Effective Date, the Loan Parties open and its Subsidiaries shall assist maintain one or more Loan Accounts. Until the Administrative Agent in (i) has advised the Loan Parties to the contrary after the occurrence and during the term continuance of this Agreement, maintaining one or more lockboxes identified on Schedule 8.01 hereto (collectivelyan Event of Default, the “Lockboxes”) with Loan Parties may and will enforce, collect and receive all amounts owing on the financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower and reasonably acceptable to the Administrative Agent in its sole discretion (each being referred to as an “Account Control Bank”), and (ii) during the term of this Agreement, maintaining deposit accounts (each, a “Control Account” and, collectively, the “Control Accounts”) with each Account Control Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its Account Debtors and Credit Card Processors, with respect to Accounts Receivable of the Borrower, to remit all payments to be made by checks or other drafts to Loan Parties for the Lockboxes Administrative Agent's benefit and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Account at such Lockbox Bank on the day received orAdministrative Agent's behalf, if but at the Loan Parties' expense; such day is not a Business Dayprivilege shall terminate, on at the next succeeding Business Day; provided that the Parent and its Subsidiaries shall not be required to so instruct an Account Debtor if (i) the aggregate amount election of the Accounts Receivable related to such Account Debtor was less than $25,000 Administrative Agent, upon the occurrence and during the most recently ended 12 month period, and (ii) the aggregate amount continuance of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month periodan Event of Default. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by the Parent or Loan Parties from any of its Subsidiaries from any their Account DebtorDebtors, as proceeds from their Accounts ReceivableReceivable of the Loan Parties, or as proceeds of any other Collateral, shall be promptly deposited held by the Parent or such Subsidiaries Loan Parties in original form into a Control Account.
(b) Each Account Control Bank shall establish and maintain Account Control Agreements regarding the Control Accounts with trust for the Administrative Agent and the applicable Loan Party, in form Lender and substance reasonably acceptable to the Agents; provided that upon receipt be deposited by the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that original form and no later than the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as next Business Day after receipt thereof into a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition of the funds in the applicable Control Account without further consent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) of the proviso in the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required Lenders. No checks, drafts or other instruments received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such checks, drafts or instruments have actually been collected.
(a) After the occurrence and during the continuance of an Event of Default, the Administrative Agent may send a notice of assignment and/or notice of the Lender' security interest to any and all Account Debtors or third parties holding or otherwise concerned with any of the Collateral, and thereafter the Administrative Agent shall have the sole right to collect the Accounts Receivable and/or take possession of the Collateral and the books and records relating thereto. The Loan Parties shall not, without prior written consent of the Administrative Agent, grant any extension of time of payment of any Account Receivable, compromise or settle any Account Receivable for less than the full amount thereof, release, in whole or in part, any Person or property liable for the payment thereof, or allow any credit or discount whatsoever thereon.
(b) Each Loan Party hereby appoints the Administrative Agent or its designee on behalf of the Administrative Agent as the Loan Parties' attorney-in-fact with power exercisable during the continuance of an Event of Default to endorse any Loan Party's name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Accounts Receivable, to sign any Loan Party's name on any invoice or xxxx of lading relating to any of the Accounts Receivable, drafts against Account Debtors with respect to Accounts Receivable, assignments and verifications of Accounts Receivable and notices to Account Debtors with respect to Accounts Receivable, to send verification of Accounts Receivable, and to notify the Postal Service authorities to change the address for delivery of mail addressed to any Loan Party to such address as the Administrative Agent may designate and to do all other acts and things necessary to carry out this Agreement. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designee shall not be liable for any acts of omission or commission (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction), or for any error of judgment or mistake of fact or law; this power being coupled with an interest is irrevocable until all of the Loans and other Obligations under the Loan Documents are paid in full and all of the Loan Documents are terminated.
(c) [Intentionally Omitted]Nothing herein contained shall be construed to constitute the Administrative Agent as agent of any Loan Party for any purpose whatsoever, and the Administrative Agent shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Administrative Agent shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Administrative Agent, by anything herein or in any assignment or otherwise, does not assume any of the obligations under any contract or agreement assigned to the Administrative Agent and shall not be responsible in any way for the performance by any Loan Party of any of the terms and conditions thereof.
(d) [Intentionally Omitted]If any Account Receivable includes a charge for any tax payable to any Governmental Authority, the Administrative Agent is hereby authorized (but in no event obligated) in its discretion to pay the amount thereof to the proper taxing authority for the Loan Parties' account and to charge the Loan Parties therefor. The Loan Parties shall notify the Administrative Agent if any Account Receivable includes any taxes due to any such Governmental Authority and, in the absence of such notice, the Administrative Agent shall have the right to retain the full proceeds of such Account Receivable and shall not be liable for any taxes that may be due by reason of the sale and delivery creating such Account Receivable.
(e) [Intentionally Omitted].
(f) [Intentionally Omitted].
(g) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies of the Agents Administrative Agent and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by law.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Cygnus Oil & Gas Corp)
Collection of Accounts Receivable; Management of Collateral. (a) The Parent Borrower shall establish and at all times maintain concentration accounts (the "Concentration Accounts") at the Concentration Account Bank, and promptly deposit, and shall cause its Subsidiaries shall assist the Administrative Agent to promptly deposit, all Collections in (i) during the term excess of this Agreement, maintaining one $200,000 received by Borrower or more lockboxes identified on Schedule 8.01 hereto (collectively, the “Lockboxes”) with the financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower and reasonably acceptable to the Administrative Agent in any of its sole discretion (each being referred to as an “Account Control Bank”)Subsidiaries from any source promptly, and (ii) during in any event no later than the term first Business Day after the date of this Agreementreceipt thereof, maintaining deposit accounts (each, a “Control Account” and, collectively, the “Control Accounts”) with each Account Control Bank. The Parent and all other Collections received by Borrower or any of its Subsidiaries shall assist from any source promptly, and in any event no later than the Administrative Agent in entering second Business Day after the date of the receipt thereof, into Account Control Agreements relating to the Control Accounts with the applicable Loan PartyConcentration Accounts. Borrower, Administrative Agent, and Concentration Account Bank shall enter into a concentration account agreement, in form and substance reasonably satisfactory to Administrative Agent (the "Concentration Account Control BankAgreement"). The Parent and Neither the Concentration Account Agreement nor the arrangements contemplated thereby shall be modified by Borrower or any of its Subsidiaries shall irrevocably instruct (it being understood without the prior written consent of Administrative Agent on behalf of the Lender Group. Upon the terms and agreed that payment instructions subject to the conditions set forth on invoices are sufficient to satisfy such instruction) its in the Concentration Account Debtors and Credit Card ProcessorsAgreement, with respect to Accounts Receivable of the Borrower, to remit all payments to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox the Concentration Accounts shall be deposited each Business Day into the Administrative Agent Account. Until the Lender Group has advised Borrower to the Control Account at such Lockbox Bank on contrary during the day received orcontinuance of an Event of Default, if such day is not a Business Day, on the next succeeding Business Day; provided that the Parent Borrower and its Subsidiaries shall not be required to so instruct an may and will enforce, collect and receive all amounts owing on the Account Debtor if (i) Receivables for the aggregate amount of Lender Group's benefit and on the Accounts Receivable related to such Account Debtor was less than $25,000 during the most recently ended 12 month period, and (ii) the aggregate amount of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month periodLender Group's behalf. All Collections (including checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness Indebtedness) received directly by the Parent Borrower or any of its Subsidiaries from any Account DebtorDebtor or any other source (exclusive of the Lender Group), whether as proceeds from their Accounts Receivable, or as proceeds of any other Collateral, or otherwise, shall be promptly deposited by the Parent or such Subsidiaries in original form into a Control Account.
(b) Each Account Control Bank shall establish received and maintain Account Control Agreements regarding the Control Accounts with the Administrative Agent and the applicable Loan Party, in form and substance reasonably acceptable to the Agents; provided that the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition of the funds in the applicable Control Account without further consent held by the applicable Loan PartyParty in trust for the Lender Group and deposited by such Loan Party in original form and no later than the next Business Day after receipt thereof into the Concentration Accounts. The Borrower shall not, nor shall it permit its Subsidiaries to, commingle such collections with the proceeds of any Loan. All Collections of each Subsidiary of Borrower deposited into the Concentration Accounts by such Subsidiary shall be deemed first to be a repayment of all outstanding Intercompany Advances made by any Loan Party to such Subsidiary, until paid in full, with all such remaining Collections being deemed to be a distribution by such Subsidiary to Borrower through each Person who (iidirectly or indirectly through one or more intermediaries) owns the Account Bank has no rights Capital Stock of setoff or recoupment or any other claim against the applicable Control Account such Subsidiary, other than any limited partner of a Non-Wholly Owned Subsidiary. Administrative Agent shall charge the Loan Account on the last day of each month for payment 2 Business Days of its service fees and other charges directly related 'clearance' or' float' at the rate applicable to the administration of such Control Account and for returned checks Revolving Loans set forth in Section 2.04(a) or other items of paymentSection 2.04(b), and (iii) from and after the date (the “Triggering Event Date”) as applicable, on all Collections that the Account Control Bank receives written notification from the are received by Administrative Agent (regardless of whether forwarded by a Concentration Account Bank to Administrative Agent, whether provisionally applied to reduce the “Triggering Event Notice”Obligations under the Loan Documents, or otherwise). This across-the-board 2 Business Day clearance or float charge on all Collections is acknowledged by the parties to constitute an integral aspect of the pricing of the Lender Group's financing of Borrower, and shall apply irrespective of the characterization of whether receipts are owned by Borrower or the Lender Group, and whether or not there are any outstanding Revolving Loans, the Account Control Bank will forward, by daily sweep, all amounts effect of such clearance or float charge being the equivalent of charging 2 Business Days of interest on such Collections. All funds received in the applicable Control Account Concentration Accounts pursuant to this Section 7.01(a) shall be credited to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) Loan Account for application at the end of each Business Day to reduce the then principal balance of the proviso in Revolving Loans, subject to the immediately preceding sentence or (bprovisions of Section 9.14(B) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required Lendershereof. No checks, drafts or other instruments received by the Administrative Agent Lender Group shall constitute final payment to the Administrative Agent Lender Group unless and until such checks, drafts or instruments have actually been collected.
(b) During the continuance of an Event of Default, the Lender Group may send a notice of assignment and/or notice of the Lender Group's security interest to any and all Account Debtors, and during such time period, the Lender Group shall have the sole right to collect the Accounts Receivable and/or take possession of the Accounts Receivable and the books and records relating thereto. Except, in the absence of a continuing Event of Default, if the aggregate amount of Accounts Receivable other than credit card receivables is more than $200,000, Borrower shall not, and shall not permit its Subsidiaries to, without prior written consent of Administrative Agent, grant any extension of time of payment of any Account Receivable, compromise or settle any Account Receivable for less than the full amount thereof, release, in whole or in part, any Person or property liable for the payment thereof, or allow any credit or discount whatsoever thereon.
(c) [Intentionally Omitted]Borrower hereby appoints the Administrative Agent for the benefit of the Lender Group or its designee on behalf of the Lender Group as Borrower's attorney-in-fact with power exercisable during the continuance of any Event of Default:
(i) to demand payment of the Accounts Receivable from Account Debtors, to enforce payment of the Accounts Receivable by legal proceedings or otherwise, and generally exercise all of Borrower's rights and remedies with respect to the collection of the Accounts Receivable, (ii) to endorse Borrower's name upon any checks or other evidences of payment relating to the Accounts Receivable, (iii) to sign Borrower's name on any invoice or xxxx of lading relating to any of the Accounts Receivable, (iv) to sign Borrower's name on any drafts against Account Debtors with respect to Accounts Receivable, (v) to prepare, file, and sign Borrower's name to a proof of claim or similar document against any Account Debtor in connection with a bankruptcy proceeding commenced by or with respect to such Account Debtor, (vi) to use Borrower's stationery and to sign Borrower's name on any assignments of Accounts Receivable, verifications of Accounts Receivable and notices to Account Debtors with respect to Accounts Receivables, and (vii) to send verifications of Accounts Receivable. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designate shall not be liable for any acts of omission or commission, or for any error of judgment or mistake of fact or law (other than acts, errors, or mistakes, constituting gross negligence or willful misconduct); this power being coupled with an interest is irrevocable until all of the Loans and other Obligations under the Loan Documents are paid in full and all of the Loan Documents are terminated.
(d) [Intentionally Omitted]Nothing contained herein shall be construed to constitute any member of the Lender Group as agent of Borrower or any of its Subsidiaries in connection with its actions under this Article VII for any purpose whatsoever, and no member of the Lender Group shall be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Accounts Receivable wherever the same may be located and regardless of the cause thereof (other than from acts or omissions of the Lender Group constituting gross negligence or willful misconduct). The Lender Group shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts or omissions of the Lender Group constituting gross negligence or willful misconduct). The Lender Group, by anything in this Article VII or in any assignment or otherwise, does not assume any of the obligations under any contract or agreement assigned to the Lender Group and shall not be responsible in any way for the performance by Borrower or any of its Subsidiaries of any of the terms and conditions thereof.
(e) [Intentionally Omitted].
If any Account Receivable includes a charge for any tax payable to any Governmental Authority, Administrative Agent is hereby authorized (fbut in no event obligated) [Intentionally Omitted].
(g) Notwithstanding in its discretion to pay the amount thereof to the proper taxing authority for Borrower's account and to charge Borrower therefor. Borrower shall notify Administrative Agent if any other terms set forth Account Receivable includes any taxes due to any such Governmental Authority and, in the Loan Documentsabsence of such notice or actual knowledge of such tax, Administrative Agent for the rights and remedies benefit of the Agents and Lender Group shall not, to the Lenders herein providedfullest extent permitted by law, and the obligations be liable for any taxes that may be due by reason of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, sale and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by lawdelivery creating such Account Receivable.
Appears in 1 contract
Samples: Credit Agreement (Avado Brands Inc)
Collection of Accounts Receivable; Management of Collateral. (a) The Parent On or prior to the date which is forty-five (45) days after the Effective Date, the Borrower shall have assisted the Funding Agent, and its Subsidiaries shall assist have caused the Administrative Agent in establishment of (i) and during the term of this Agreement, maintaining shall continue to assist in maintaining), (i) one or more lockboxes in the name of the Funding Agent and identified on Schedule 8.01 12.1 hereto (collectively, the “Lockboxes”"LOCKBOXES") with the financial institutions set forth on Schedule 8.01 12.1 hereto or such other financial institutions selected by the Borrower and reasonably acceptable to the Administrative Funding Agent in its sole discretion (each being referred to as an “Account Control Bank”a "LOCKBOX BANK"), and (ii) during the term of this Agreement, maintaining deposit accounts an account (each, a “Control Account” "COLLECTION ACCOUNT" and, collectively, the “Control Accounts”"COLLECTION ACCOUNTS") in the name of the Collateral Agent with each Account Control Lockbox Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries Borrower shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its their Account Debtors and Credit Card ProcessorsDebtors, with respect to Accounts Receivable of the Borrower, to remit all payments payment to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account payments as directed by the Funding Agent and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Collection Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that . Until the Parent Funding Agent has advised the Borrower to the contrary after the occurrence and its Subsidiaries shall not be required to so instruct during the continuance of an Account Debtor if (i) Event of Default, the aggregate amount of Borrower may and will enforce, collect and receive all amounts owing on the Accounts Receivable related to of the Borrower for the Funding Agent's benefit and on the Funding Agent's behalf, but at the Borrower's expense; such Account Debtor was less than $25,000 privilege shall terminate, at the election of any Agent, upon the occurrence and during the most recently ended 12 month period, and (ii) the aggregate amount continuance of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month periodany Event of Default. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by the Parent or any of its Subsidiaries Borrower from any Account DebtorDebtor and all Net Cash Proceeds, received pursuant to an event described in subsection 2.5(c)(iv), as proceeds from their Accounts Receivablethe case may be, shall be held by the Borrower in trust for the Agents and the Lenders and upon receipt be deposited by the Borrower in original form and no later than the next Business Day after receipt thereof into a Collection Account; PROVIDED, that, in the absence of a continuing Event of Default, the Borrower may retain and not deposit into a Collection Account or as a Lockbox not more than $100,000 of such collections in any calendar month. The Borrower shall not commingle such collections with the Borrower's own funds or the funds of any Subsidiary or Affiliate of the Borrower or with the proceeds of any other assets not included in the Collateral, . The Funding Agent shall charge the Loan Account on the last day of each month with one (1) collection days for all funds to be promptly deposited by the Parent or such Subsidiaries in original form into a Control Account.
(b) Each Account Control Bank shall establish and maintain Account Control Agreements regarding the Control Accounts with the Administrative Agent and the applicable Loan Party, in form and substance reasonably acceptable sent to the Agents; provided that Payment Office to be credited to the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll accountFunding Agent's Account. Except as otherwise agreed to in writing by the Administrative Agent, each The effect of such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition of the funds "one collection days" being charged in the applicable Control Account without further consent by preceding sentence is the applicable Loan Party, (ii) the Account Bank has no rights equivalent of setoff or recoupment or any other claim against the applicable Control Account other than for payment charging one Business Day of its service fees and other charges directly related interest on such collections. Prior to the administration occurrence and continuance of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) of the proviso in the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred Default, at least 73% of all funds, and is continuing. Once during the existence of an Event of Default has occurred and is continuingDefault, (x) Administrative Agent all funds, received in the Collection Account shall be free sent by wire transfer or Automated Clearing House Inc. payment to exercise its right the Payment Office which will be credited to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request Funding Agent's Account for application at the end 95 102 of each Business Day to reduce the then principal balance of the Required LendersRevolving Credit Loans, and, if no Revolving Credit Loans are outstanding, the Term Loans, conditional upon final payment to the Funding Agent. No checks, drafts or other instruments instrument received by the Administrative Funding Agent shall constitute final payment to the Administrative Funding Agent unless and until such checks, drafts or instruments have actually been collected.
(b) After the occurrence and during the continuance of an Event of Default, any Agent may send a notice of assignment and/or notice of the Lenders' security interest to any and all Account Debtors or third parties holding or otherwise concerned with any of the Collateral, and thereafter the Agents shall have the sole right to collect the Accounts Receivable and/or take possession of the Collateral and the books and records relating thereto. The Borrower shall not, without prior written consent of the Agents, grant any extension of time of payment of any Account Receivable, compromise or settle any Account Receivable for less than the full amount thereof, release, in whole or in part, any Person or property liable for the payment thereof, or allow any credit or discount whatsoever thereon, except, in the absence of a continuing Event of Default.
(c) [Intentionally Omitted]The Borrower hereby appoints each Agent or its designee on behalf of such Agent as the Borrower's attorney-in-fact with power exercisable during the continuance of any Event of Default to endorse the Borrower's name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Accounts Receivable, to sign the Borrower's name on any invoice or bill xx lading relating to any of the Accounts Receivable, drafts against Account Debtors with respect to Accounts Receivable, assignments and verifications of Accounts Receivable and notices to Account Debtors with respect to Accounts Receivables, to send verification of Accounts Receivable, and, to notify the Postal Service authorities to change the address for delivery of mail addressed to the Borrower to such address as such Agent may designate and to do all other acts and things necessary to carry out this Agreement. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designate shall not be liable for any acts of omission or commission (other than acts or omissions constituting gross negligence or willful misconduct), or for any error of judgment or mistake of fact or law; this power being coupled with an interest is irrevocable until all of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations under the Loan Documents are paid in full and all of the Loan Documents are terminated.
(d) [Intentionally Omitted]Nothing herein contained shall be construed to constitute any Agent as agent of the Borrower for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts or omissions of the Agents constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts or omissions of the Agents constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any 96 103 contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
(e) [Intentionally Omitted]If any Account Receivable includes a charge for any tax payable to any Governmental Authority, the Agents are hereby authorized (but in no event obligated) in its discretion to pay the amount thereof to the proper taxing authority for the Borrower's account and to charge the Borrower therefor. The Borrower shall notify the Agents if any Account Receivable includes any taxes due to any such Governmental Authority and, in the absence of such notice, the Agents shall have the right to retain the full proceeds of such Account Receivable and shall not be liable for any taxes that may be due by reason of the sale and delivery creating such Account Receivable.
(f) [Intentionally Omitted].
(g) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies of the Agents and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by law.
Appears in 1 contract
Collection of Accounts Receivable; Management of Collateral. (a) The Parent Until Bank has advised a Borrower to the contrary in writing after the occurrence and its Subsidiaries shall assist the Administrative Agent in (i) during the term continuance of this Agreement, maintaining one or more lockboxes identified on Schedule 8.01 hereto (collectively, the “Lockboxes”) with the financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower and reasonably acceptable to the Administrative Agent in its sole discretion (each being referred to as an “Account Control Bank”), and (ii) during the term Event of this Agreement, maintaining deposit accounts (eachDefault, a “Control Account” andBorrower may and will enforce, collectively, collect and receive all amounts owing on the “Control Accounts”) with each Account Control Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its Account Debtors and Credit Card Processors, with respect to Accounts Receivable of the such Borrower for Bank’s benefit and on Bank’s behalf, but at such Borrower’s expense; such privilege shall terminate, to remit all payments to be made the maximum extent permitted by checks or other drafts to law, at the Lockboxes election of Bank, upon the occurrence and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment during the continuance of an Event of Default and written notice to a Control Account and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Account at Borrower of such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that the Parent and its Subsidiaries shall not be required to so instruct an Account Debtor if (i) the aggregate amount of the Accounts Receivable related to such Account Debtor was less than $25,000 during the most recently ended 12 month period, and (ii) the aggregate amount of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month period. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by the Parent or any of its Subsidiaries from any Account Debtor, as proceeds from their Accounts Receivable, or as proceeds of any other Collateral, shall be promptly deposited by the Parent or such Subsidiaries in original form into a Control Accounttermination.
(b) Each Account Control Bank shall establish and maintain Account Control Agreements regarding To the Control Accounts with the Administrative Agent and the applicable Loan Partymaximum extent permitted by law, in form and substance reasonably acceptable to the Agents; provided that the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition of the funds in the applicable Control Account without further consent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (occurrence and during the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) continuance of the proviso in the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred Default, Bank may or its designee may send a notice of assignment and/or notice of the Bank’s security interest to any and is continuing. Once an all account debtors or third parties holding or otherwise concerned with any of the Collateral, and thereafter so long as such Event of Default has occurred and is continuing, (x) Administrative Agent continues Bank or its designee shall be free to exercise its have the sole right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon collect the request Accounts Receivable and/or take possession of the Required Lenders. No checks, drafts or other instruments received by Collateral and the Administrative Agent shall constitute final payment to the Administrative Agent unless books and until such checks, drafts or instruments have actually been collectedrecords relating thereto.
(c) [Intentionally Omitted].
If any Account includes a charge for any tax payable to any Governmental Authority, Bank is hereby authorized (dbut in no event obligated) [Intentionally Omitted].
(e) [Intentionally Omitted].
(f) [Intentionally Omitted].
(g) Notwithstanding in its discretion to pay the amount thereof to the proper taxing authority for the Borrower’ account and to charge such Borrower therefor unless such Borrower had, prior to such payment being made by Bank, notified Bank that it is contesting such tax in good faith. The Borrowers shall notify Bank if any other terms set forth Account includes any taxes due to any such Governmental Authority and, in the Loan Documentsabsence of such notice, Bank shall have the rights right to retain the full proceeds of such Account and remedies shall not be liable for any taxes that may be due by reason of the Agents sale and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by lawdelivery creating such Account.
Appears in 1 contract
Samples: Loan and Security Agreement (Everside Health Group, Inc.)
Collection of Accounts Receivable; Management of Collateral. (a) The With respect to the Account Receivables, the Parent shall and shall cause its Subsidiaries shall assist to, irrevocably instruct the Administrative Agent in (i) during the term of this Agreement, maintaining one or more lockboxes identified on Schedule 8.01 hereto (collectively, the “Lockboxes”) with the financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower and reasonably acceptable Account Debtors to remit to the Administrative Agent in its sole discretion (each being referred to as an “Lender Account Control Bank”), and (ii) during the term of this Agreement, maintaining deposit accounts (each, a “Control Account” and, collectively, the “Control Accounts”) with each Account Control Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its Account Debtors and Credit Card Processors, with respect to Accounts Receivable of the Borrower, to remit all payments to be made by checks check or other drafts to the Lockboxes draft and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox transfer. Until the Lender has advised the Borrowers to the Control Account at such Lockbox Bank on contrary after the day received oroccurrence and during the continuance of an Event of Default, if such day is not a Business Day, on the next succeeding Business Day; provided that the Parent and its Subsidiaries may and will enforce, collect and receive all amounts owing on the Account Receivables for the Lender’s benefit and on the Lender’s behalf, but at the Borrowers’ expense; such privilege shall not be required to so instruct an Account Debtor if (i) terminate, at the aggregate amount election of the Accounts Receivable related to such Account Debtor was less than $25,000 Lender, upon the occurrence and during the most recently ended 12 month period, and (ii) the aggregate amount continuance of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month periodany Event of Default. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by the Parent or any of its Subsidiaries Subsidiary from any Account Debtor, as proceeds from their Accounts Receivable, or as proceeds of any other Collateral, shall be promptly received and held by such Person in trust for the Lender and deposited by the Parent or such Subsidiaries Person in original form and no later than the next Business Day after receipt thereof into a Control the Lender Account.
(b) Each Account Control Bank . None of the Borrowers shall establish and maintain Account Control Agreements regarding commingle such collections with any Borrower’s own funds or the Control Accounts funds of any Subsidiary or Affiliate of such Borrower or with the Administrative Agent and proceeds of any assets not included in the applicable Collateral. The Lender shall charge the Loan PartyAccount on the last day of each month with three collection days for all such collections, except wire transfers or other transfers of good funds. All funds received in form and substance reasonably acceptable the Lender Account pursuant to this Section 7.0 1(a) shall be credited to the Agents; provided that Loan Account for application at the Loan Parties may have investments in an aggregate amount not end of each Business Day to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that reduce the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition then principal balance of the funds in the applicable Control Account without further consent by the applicable Loan PartyRevolving Loans, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for conditional upon final payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) of the proviso in the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required LendersLender. No checks, drafts or other instruments received by the Administrative Agent Lender shall constitute final payment to the Administrative Agent Lender unless and until such checks, drafts or instruments have actually been collected.
(b) After the occurrence and during the continuance of an Event of Default, the Lender may send a notice of assignment and/or notice of the Lender’s security interest to any and all Account Debtors or third parties holding or otherwise concerned with any of the Collateral, and thereafter the Lender shall have the sole right to collect the Accounts Receivable and/or take possession of the Collateral and the books and records relating thereto. The Parent shall not, and shall not permit its Subsidiaries to, without prior written consent of the Lender, grant any extension of time of payment of any Account Receivable, compromise or settle any Account Receivable for less than the full amount thereof, release, in whole or in part, any Person or property liable for the payment thereof, or allow any credit or discount whatsoever thereon, except, in the absence of a continuing Event of Default, as permitted by Section 6.02(o).
(c) [Intentionally Omitted]Each Borrower hereby appoints the Lender or its designee on behalf of the Lender as each Borrower’s attorney-in-fact with power exercisable during the continuance of any Default or Event of Default to endorse such Borrower’s name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Accounts Receivable, to sign such Borrower’s name on any invoice or xxxx of lading relating to any of the Accounts Receivable, drafts against Account Debtors with respect to Accounts Receivable, assignments and verifications of Accounts Receivable and notices to Account Debtors with respect to Accounts Receivable, to send verification of Accounts Receivable, and, to notify the Postal Service authorities to change the address for delivery of mail addressed to the Parent or any of its Subsidiaries to such address as the Lender may designate and to do all other acts and things necessary to carry out this Agreement. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designate shall not be liable for any acts of omission or commission (other than acts or omissions constituting gross negligence or willful misconduct), or for any error of judgment or mistake of fact or law; this power being coupled with an interest is irrevocable until all of the Loans and other Obligations under the Loan Documents are paid in full and all of the Loan Documents are terminated.
(d) [Intentionally Omitted]Nothing herein contained shall be construed to constitute the Lender as agent the Parent or any Subsidiary for any purpose whatsoever, and the Lender shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts or omissions of the Lender constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Lender shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts or omissions of the Lender constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Lender, by anything herein or in any assignment or otherwise, does not assume any of the obligations under any contract or agreement assigned to the Lender and shall not be responsible in any way for the performance by the Parent or any Subsidiary of any of the terms and conditions thereof.
(e) [Intentionally Omitted].
If any Account Receivable includes a charge for any tax payable to any Governmental Authority, the Lender is hereby authorized (fbut in no event obligated) [Intentionally Omitted].
(g) Notwithstanding in its discretion to pay the amount thereof to the proper taxing authority for the applicable Borrower’s account and to charge the Borrowers therefor. Each Borrower shall notify the Lender if any other terms set forth Account Receivable includes any taxes due to any such Governmental Authority and, in the Loan Documentsabsence of such notice, the rights Lender shall have the right to retain the full proceeds of such Account Receivable and remedies shall not be liable for any taxes that may be due by reason of the Agents sale and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by lawdelivery creating such Account Receivable.
Appears in 1 contract
Samples: Financing Agreement (Enherent Corp)
Collection of Accounts Receivable; Management of Collateral. (a) The Parent After the occurrence and its Subsidiaries shall assist the Administrative Agent in (i) during the term continuance of this Agreement, maintaining one or more lockboxes identified on Schedule 8.01 hereto (collectivelyan Event of Default, the “Lockboxes”) with the financial institutions set forth on Schedule 8.01 hereto Collateral Agent or such other financial institutions selected by the Borrower and reasonably acceptable to the Administrative Agent in its sole discretion (each being referred to as an “Account Control Bank”)designee may, and (ii) during at the term request of this Agreement, maintaining deposit accounts (each, a “Control Account” and, collectivelythe Requisite Lenders, the “Control Accounts”) Collateral Agent shall, send a notice of assignment and/or notice of the Collateral Agent’s security interest to any and all Account Debtors or third parties holding or otherwise concerned with each Account Control Bank. The Parent and its Subsidiaries shall assist any of the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative AgentCollateral, and thereafter the Account Control Bank. The Parent and Collateral Agent or its Subsidiaries designee shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient have the sole right to satisfy such instruction) its Account Debtors and Credit Card Processors, with respect to Accounts Receivable of the Borrower, to remit all payments to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that the Parent and its Subsidiaries shall not be required to so instruct an Account Debtor if (i) the aggregate amount of collect the Accounts Receivable related to such Account Debtor was less than $25,000 during the most recently ended 12 month period, and (ii) the aggregate amount and/or take possession of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during Collateral and the most recently ended 12 month period. All checks, drafts, notes, money orders, acceptances, cash books and other evidences of Indebtedness received directly by the Parent or any of its Subsidiaries from any Account Debtor, as proceeds from their Accounts Receivable, or as proceeds of any other Collateral, shall be promptly deposited by the Parent or such Subsidiaries in original form into a Control Accountrecords relating thereto.
(b) Each Account Control Bank shall establish and maintain Account Control Agreements regarding Subject to the Control Accounts with the Administrative Agent entry and the applicable Loan Party, in form and substance reasonably acceptable to the Agents; provided that the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition terms of the funds in the applicable Control Account without further consent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”)Bankruptcy Court Orders, the Account Control Bank will forward, by daily sweep, all amounts in Borrowers hereby appoint the applicable Control Account to the Administrative Agent’s Account. Administrative Collateral Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) or its designee on behalf of the proviso in Collateral Agent as the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until Borrowers’ attorney-in-fact with power exercisable during the continuance of an Event of Default has occurred to endorse the Borrower’s name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Accounts Receivable, to sign any Borrower’s name on any invoice or xxxx of lading relating to any of the Accounts Receivable, drafts against Account Debtors with respect to Accounts Receivable, assignments and is continuing. Once an Event verifications of Default has occurred Accounts Receivable and is continuingnotices to Account Debtors with respect to Accounts Receivable, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Noticesend verification of Accounts Receivable, and to notify the Postal Service authorities to change the address for delivery of mail addressed to any Borrower to such address as the Collateral Agent or such designee may designate and to do all other acts and things necessary to carry out this Agreement. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designee shall not be liable for any acts of omission or commission (y) Administrative Agent shall issue other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a Triggering Event Notice upon the request final judgment of a court of competent jurisdiction), or for any error of judgment or mistake of fact or law not constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction; this power being coupled with an interest is irrevocable until all of the Required Lenders. No checks, drafts or Loans and other instruments received by Obligations under the Administrative Agent shall constitute final payment to Credit Documents are paid in full and all of the Administrative Agent unless and until such checks, drafts or instruments have actually been collectedCredit Documents are terminated.
(c) [Intentionally Omitted]Nothing herein contained shall be construed to constitute any Agent as agent of any Borrower for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by any Borrower of any of the terms and conditions thereof.
(d) [Intentionally Omitted]If any Account Receivable includes a charge for any tax payable to any Governmental Authority, each Agent is hereby authorized (but in no event obligated) in its discretion to pay the amount thereof to the proper taxing authority for the applicable Borrower’s account and to charge the Borrowers therefor. The Borrowers shall notify the Agents if any Account Receivable includes any taxes due to any such Governmental Authority and, in the absence of such notice, the Agents shall have the right to apply the full proceeds of such Account Receivable and shall not be liable for any taxes that may be due by reason of the sale and delivery creating such Account Receivable.
(e) [Intentionally Omitted].
(f) [Intentionally Omitted].
(g) Notwithstanding any other terms set forth in the Loan Credit Documents, the rights and remedies of the Agents and the Lenders herein provided, and the obligations of the Loan Parties Borrowers set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Credit Document or as provided by law.
Appears in 1 contract
Samples: Debtor in Possession Financing Agreement (Granite Broadcasting Corp)
Collection of Accounts Receivable; Management of Collateral. (a) The Parent On or prior to the Effective Date, and its Subsidiaries shall assist pursuant to the Administrative Cash Management Order, the Issuer shall, in a manner satisfactory to the Required Holders and the Collateral Agent in (i) establish, and, during the term of this Agreement, maintaining maintain, one or more lockboxes subject to a first priority Liens in favor of the Collateral Agent for the benefit of the Agents and the Holders and identified on Schedule 8.01 9.01 hereto (collectively, the “Lockboxes”) with the financial institutions set forth on Schedule 8.01 9.01 hereto or such other financial institutions selected by the Borrower Issuer and reasonably acceptable to the Administrative Required Holders and the Collateral Agent in its their sole discretion (each being referred to as an a “Account Control Lockbox Bank”), and (ii) establish, and during the term of this Agreement, maintaining deposit maintain, one or more accounts (each, a “Control Collection Account” and, collectively, the “Control Collection Accounts”) subject to a first priority Lien in favor of the Collateral Agent for the benefit of the Agents and the Holders with each Account Control Lockbox Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries Issuer shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its Account Debtors and Credit Card ProcessorsDebtors, with respect to Accounts Receivable of the BorrowerIssuer, to remit all payments to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. (“ACH”) payment to a Control the Collection Account and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Collection Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that . Until the Parent Collateral Agent, at the written direction of the Required Holders, has advised the Issuer to the contrary after the occurrence and its Subsidiaries shall not be required to so instruct during the continuance of an Account Debtor if (i) Event of Default, the aggregate amount of Issuer may and will enforce, collect and receive all amounts owing on the Accounts Receivable related to of the Issuer for the Collateral Agent’s benefit and on the Collateral Agent’s behalf, but at the Issuer’s expense; such Account Debtor was less than $25,000 privilege shall terminate, at the written election of the Required Holders, upon the occurrence and during the most recently ended 12 month period, and (ii) the aggregate amount continuance of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month periodan Event of Default. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by the Parent or Issuer from any of its Subsidiaries from any Account DebtorDebtors, as proceeds from their Accounts ReceivableReceivable of the Issuer, or as proceeds of any other Collateral, shall be promptly held by the Issuer in trust for the Agents and the Holders and upon receipt be deposited by the Parent or such Subsidiaries Issuer in original form and no later than the next Business Day after receipt thereof into a Control Collection Account.
(b) Each Account Control Bank . The Issuer shall establish and maintain Account Control Agreements regarding the Control Accounts not commingle such collections with the Administrative Agent Issuer’s own funds or with the proceeds of any assets not included in the Collateral. Upon the occurrence and during the applicable Loan Partycontinuance of an Event of Default, in form and substance reasonably acceptable to the Agents; provided that the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Collateral Agent, each such Account at the written direction of the Required Holders, may instruct any or all of the Lockbox Banks, by delivery of a Notice of Sole Control Agreement shall provide, among other things, that (i) that such Lockbox Banks shall no longer accept the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition of the funds in the applicable Control Account without further consent by the applicable Loan Party, Issuer and (ii) that all funds received in the Collection Account Bank has no rights of setoff shall be sent on each Business Day by wire transfer or recoupment or any other claim against the applicable Control Account other than for ACH payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts Concentration Account. All funds received in the applicable Control Concentration Account shall be sent on each Business Day by wire transfer or ACH payment to the Collateral Agent’s Account to be credited to the Collateral Agent’s Account for application at the end of each Business Day on which such funds are received in the Collateral Agent’s Account to reduce the then outstanding amount of the Obligations, conditional upon final payment to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) of the proviso in the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required Lenders. No checks, drafts or other instruments received by the Administrative Collateral Agent shall constitute final payment to the Administrative Agent unless and until such checks, drafts or instruments have actually been collected.
(b) After the occurrence and during the continuance of an Event of Default, the Collateral Agent may, at the written direction of the Required Holders send a notice of assignment and/or notice of the Holders’ security interest to any and all Account Debtors or third parties holding or otherwise concerned with any of the Collateral, and thereafter the Collateral Agent shall have the sole right to collect the Accounts Receivable and/or take possession of the Collateral and the books and records relating thereto. The Issuer shall not, without prior written consent of the Collateral Agent given at the written direction of the Required Holders, grant any extension of time of payment of any Account Receivable, compromise or settle any Account Receivable for less than the full amount thereof, release, in whole or in part, any Person or property liable for the payment thereof, or allow any credit or discount whatsoever thereon, except, in the absence of a continuing Event of Default, in the ordinary course of its business.
(c) [Intentionally Omitted]The Issuer hereby appoints each Agent or its designee on behalf of such Agent as the Issuer’s attorney-in-fact with power exercisable during the continuance of an Event of Default, at the written direction of the Required Holders, to endorse the Issuer’s name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Accounts Receivable, to sign the Issuer’s name on any invoice or bill of lading relating to any of the Accounts Receivable, drafts against Account Debtors with respect to Accounts Receivable, assignments and verifications of Accounts Receivable and notices to Account Debtors with respect to Accounts Receivable, to send verification of Accounts Receivable, and to notify the postal service authorities to change the address for delivery of mail addressed to the Issuer to such address as such Agent may designate and to do all other acts and things necessary to carry out this Agreement. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designee shall not be liable for any acts of omission or commission (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction no longer subject to appeal), or for any error of judgment or mistake of fact or law; this power being coupled with an interest is irrevocable until all of the Obligations under the Note Documents are paid in full and all of the Note Documents are terminated.
(d) [Intentionally Omitted]Nothing herein contained shall be construed to constitute any Agent as agent of the Issuer for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction no longer subject to appeal). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction no longer subject to appeal). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by the Issuer of any of the terms and conditions thereof.
(e) [Intentionally Omitted]If any Account Receivable includes a charge for any tax payable to any Governmental Authority, each Agent is hereby authorized (but in no event obligated) in its discretion to pay the amount thereof to the proper taxing authority for the Issuer’s account and to charge the Issuer therefor. The Issuer shall notify the Agents if any Account Receivable includes any taxes due to any such Governmental Authority and, in the absence of such notice, the Agents shall have the right to retain the full proceeds of such Account Receivable and shall not be liable for any taxes that may be due by reason of the sale and delivery creating such Account Receivable.
(f) [Intentionally Omitted].
(g) Notwithstanding any other terms set forth in the Loan Note Documents, the rights and remedies of the Agents and the Lenders Holders herein provided, and the obligations of the Loan Parties Issuer set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Note Document or as provided by law.
Appears in 1 contract
Samples: Senior Secured Post Petition Note Purchase Agreement (Anchor Glass Container Corp /New)
Collection of Accounts Receivable; Management of Collateral. After the occurrence and during the continuance of an Event of Default, the Collateral Agent may send a notice of assignment and/or notice of the Lenders’ security interest to any and all Account Debtors or third parties holding or otherwise concerned with any of the Collateral, and thereafter the Collateral Agent shall have the sole right to collect the Accounts Receivable and/or take possession of the Collateral and the books and records relating thereto. Neither the Borrower nor any Guarantor shall, without prior written consent of the Collateral Agent, grant any extension of time of payment of any Account Receivable, compromise or settle any Account Receivable for less than the full amount thereof, release, in whole or in part, any Person or property liable for the payment thereof, or allow any credit or discount whatsoever thereon, except in the ordinary course of its business.
(a) The Parent Borrower hereby appoints each Agent or its designee on behalf of such Agent as the Borrower’s and its Subsidiaries shall assist the Administrative Agent in (i) each Guarantor’s attorney-in-fact with power exercisable during the term continuance of this Agreementan Event of Default to endorse the Borrower’s and each Guarantor’s name upon any notes, maintaining one acceptances, checks, drafts, money orders or more lockboxes identified on Schedule 8.01 hereto (collectively, the “Lockboxes”) with the financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower and reasonably acceptable to the Administrative Agent in its sole discretion (each being referred to as an “Account Control Bank”), and (ii) during the term evidences of this Agreement, maintaining deposit accounts (each, a “Control Account” and, collectively, the “Control Accounts”) with each Account Control Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements payment relating to the Control Accounts with Receivable, to sign the applicable Loan PartyBorrower’s and each Guarantor’s name on any invoice or bxxx of lading relating to any of the Accounts Receivable, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its drafts against Account Debtors and Credit Card Processors, with respect to Accounts Receivable, assignments and verifications of Accounts Receivable of the Borrowerand notices to Account Debtors with respect to Accounts Receivable, to remit all payments send verification of Accounts Receivable, and to be made by checks or other drafts notify the Postal Service authorities to change the address for delivery of mail addressed to the Lockboxes Borrower or any Guarantor to such address as such Agent may designate and to remit do all payments other acts and things necessary to be made by wire transfer carry out this Agreement. All acts of said attorney or by Automated Clearing Housedesignee are hereby ratified and approved, Inc. payment to a Control Account and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that the Parent and its Subsidiaries said attorney or designee shall not be required to so instruct an Account Debtor if liable for any acts of omission or commission (i) the aggregate amount other than acts of the Accounts Receivable related to such Account Debtor was less than $25,000 during the most recently ended 12 month period, and (ii) the aggregate amount omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month period. All checks, drafts, notes, money orders, acceptances, cash and other evidences a court of Indebtedness received directly by the Parent or any of its Subsidiaries from any Account Debtor, as proceeds from their Accounts Receivablecompetent jurisdiction), or as proceeds for any error of any other Collateral, shall be promptly deposited by the Parent judgment or such Subsidiaries in original form into a Control Accountmistake of fact or law; this power being coupled with an interest is irrevocable until Termination.
(b) Each Account Control Bank Nothing herein contained shall establish be construed to constitute any Agent as agent of the Borrower or any Guarantor for any purpose whatsoever, and maintain Account Control Agreements regarding the Control Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts with Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the Administrative obligations under any contract or agreement assigned to any Agent and the applicable Loan Party, in form and substance reasonably acceptable to the Agents; provided that the Loan Parties may have investments in an aggregate amount shall not to exceed $100,000 be responsible in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that way for the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing performance by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with Borrower or any instructions originated by Administrative Agent directing the disposition Guarantor of any of the funds in the applicable Control Account without further consent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for payment of its service fees terms and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) of the proviso in the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required Lenders. No checks, drafts or other instruments received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such checks, drafts or instruments have actually been collectedconditions thereof.
(c) [Intentionally Omitted]If any Account Receivable includes a charge for any tax payable to any Governmental Authority, each Agent is hereby authorized (but in no event obligated) in its discretion to pay the amount thereof to the proper taxing authority for the account of the Borrower or the applicable Guarantor and to charge the Borrower and/or such Guarantor therefor.
(d) [Intentionally Omitted].
(e) [Intentionally Omitted].
(f) [Intentionally Omitted].
(g) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies of the Agents and the Lenders herein provided, and the obligations of the Loan Parties Borrower and the Guarantors set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by law.
Appears in 1 contract
Collection of Accounts Receivable; Management of Collateral. (a) The Parent and its Subsidiaries On or prior to the Effective Date, the Borrower shall assist the Administrative Agent in (i) establishing, and, during the term of this Agreement, maintaining one or more lockboxes in the name of Foothill (or, if the Foothill Indebtedness under the Foothill Loan Agreement has been repaid in full and the Foothill Loan Agreement has been terminated, in the name of the Administrative Agent) and identified on Schedule 8.01 hereto (collectively, the “Lockboxes”) with the financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower and reasonably acceptable to the Administrative Agent in its sole discretion (each being referred to as an a “Account Control Lockbox Bank”), and (ii) establishing, and during the term of this Agreement, maintaining deposit accounts an account (each, a “Control Collection Account” and, collectively, the “Control Collection Accounts”) in the name of Foothill (or, if the Foothill Indebtedness under the Foothill Loan Agreement has been repaid in full and the Foothill Loan Agreement has been terminated, in the name of the Administrative Agent) with each Account Control Lockbox Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries Borrower shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its Account Debtors and Credit Card ProcessorsDebtors, with respect to Accounts Receivable of the Borrower, to remit all payments to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account as directed by Foothill (or, if the Foothill Indebtedness under the Foothill Loan Agreement has been repaid in full and the Foothill Loan Agreement has been terminated, by the Administrative Agent) and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Collection Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that the Parent and its Subsidiaries shall not be required to so instruct an Account Debtor if (i) the aggregate amount of the Accounts Receivable related to such Account Debtor was less than $25,000 during the most recently ended 12 month period, and (ii) the aggregate amount of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month period. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by the Parent or any of its Subsidiaries Borrower from any Account Debtor, as proceeds from their Accounts ReceivableReceivable of the Borrower, or as proceeds of any other Collateral, shall be promptly held by the Borrower in trust for the Agents and the Lenders and upon receipt be deposited by the Parent or such Subsidiaries Borrower in original form and no later than the next Business Day after receipt thereof into a Control Collection Account.
(b) Each Account Control Bank . The Borrower shall establish and maintain Account Control Agreements regarding the Control Accounts not commingle such collections with the Administrative Agent and Borrower’s own funds or the applicable Loan Party, in form and substance reasonably acceptable to the Agents; provided that the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in funds of any deposit account Subsidiary or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition Affiliate of the funds Borrower or with the proceeds of any assets not included in the applicable Control Account without further consent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) of the proviso in the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required LendersCollateral. No checks, drafts or other instruments received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such checks, drafts or instruments have actually been collected.
(c) [Intentionally Omitted].
(d) [Intentionally Omitted].
(e) [Intentionally Omitted].
(f) [Intentionally Omitted].
(g) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies of the Agents and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by law.
Appears in 1 contract
Samples: Financing Agreement (Metalico Inc)
Collection of Accounts Receivable; Management of Collateral. (a) The Parent and its Subsidiaries On or prior to the Effective Date, the Borrower shall assist the Administrative Agent in (i) establishing, and, during the term of this Agreement, maintaining one or more lockboxes identified on Schedule 8.01 hereto blocked accounts (collectively, the “LockboxesBlocked Accounts”) with respect to the Borrower’s principal concentration accounts with the financial institutions institution set forth on Schedule 8.01 hereto or such other financial institutions selected by (the Borrower and reasonably acceptable to the Administrative Agent in its sole discretion (each being referred to as an “Blocked Account Control Bank”), and (ii) during the term of this Agreement, maintaining deposit accounts (each, a “Control Account” and, collectively, the “Control Accounts”) with each Account Control Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements a control agreement relating to the Control Accounts Blocked Account with the applicable Loan PartyBorrower, Administrative the Collateral Agent, and the Blocked Account Control Bank. The Parent Each of the Borrower and its Subsidiaries each Subsidiary shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its Account Debtors and Credit Card Processors(until instructed to the contrary by Collateral Agent), with respect to its Accounts Receivable consisting of the Borrowercredit or debit card payments, to remit all payments to be made by them, whether by means of checks or other drafts to the Lockboxes and to remit all payments to be made or by wire transfer or by Automated Clearing House, Inc. payment payment, to a Control Blocked Account and shall instruct each Lockbox the Blocked Account Bank to deposit all amounts received in its Lockbox by it to the Control a Blocked Account at such Lockbox Blocked Account Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that the Parent and its Subsidiaries shall not be required to so instruct an Account Debtor if (i) the aggregate amount . Each of the Borrower and each Subsidiary will enforce, collect and receive all amounts owing on their Accounts Receivable related to for the Agents’ benefit and on the Administrative Agent’s behalf, but at the Borrower’s or such Account Debtor was less than $25,000 Subsidiary’s expense; and such privilege shall terminate at the election of any Agent hereunder upon the occurrence and during the most recently ended 12 month period, and (ii) the aggregate amount continuance of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month periodan Event of Default. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by the Parent Borrower or any of its Subsidiaries from any Account Debtor, as proceeds from their Accounts Receivable, or as proceeds of any other Collateral, shall be promptly held by the Borrower or such Subsidiaries in trust for the Agents and the Lenders and upon receipt be deposited by the Parent Borrower or such Subsidiaries in original form and no later than the next Business Day after receipt thereof into a Control Blocked Account.
. Except to the extent permitted by clause (bii) Each Account Control Bank of the following sentence, the Borrower and such Subsidiaries shall establish and maintain Account Control Agreements regarding the Control Accounts not commingle such collections with their own funds, with the Administrative Agent and funds of any Subsidiary or Affiliate of the applicable Loan Party, Borrower or with the proceeds of any assets not included in form and substance reasonably acceptable to the Agents; provided that Collateral. All funds received in the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that Blocked Accounts (i) after the Account Control Bank will comply with any instructions originated occurrence and during the continuance of a Triggering Event, upon request by Administrative Agent directing the disposition of the funds in the applicable Control Account without further consent Collateral Agent, shall be sent by the applicable Loan Partywire transfer or Automated Clearing House, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for Inc. payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account Payment Office to be credited to the Administrative Agent’s Account. Account for application at the end of each Business Day when such funds are received in Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) Agent’s Account to reduce the then principal balance of the proviso in Revolving Loans and the immediately preceding sentence or (b) provide a Triggering Event Noticeother Obligations then due and payable, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) conditional upon final payment to the Administrative Agent shall be free to exercise its right to issue a Triggering Event NoticeAgent, and (yii) Administrative Agent shall issue a Triggering Event Notice upon the request at all other times, may be transferred to an operating account of the Required LendersBorrower or one of its Subsidiaries. No checks, drafts or other instruments received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such checks, drafts or instruments have actually been collected.
(b) After the occurrence and during the continuance of an Event of Default, the Collateral Agent may send a notice of assignment and/or notice of the Lenders’ security interest to any and all Account Debtors and, thereafter, the Collateral Agent shall have the sole right to collect the Accounts Receivable and payment intangibles of the Borrower and its Subsidiaries and/or take possession of the Collateral and the books and records relating thereto. After the occurrence and during the continuation of an Event of Default, upon receipt of a notice from Collateral Agent of its election with respect thereto, the Borrower and its Subsidiaries shall not, without prior written consent of the Collateral Agent, grant any extension of time of payment of any Account Receivable or payment intangible, compromise or settle any Account Receivable or payment intangible for less than the full amount thereof, release, in whole or in part, any Person or property liable for the payment thereof, or allow any credit or discount whatsoever thereon.
(c) [Intentionally Omitted]The Borrower hereby appoints each Agent or its designee on behalf of such Agent as the Borrower’s attorney-in-fact with power exercisable during the continuance of an Event of Default to (i) endorse the Borrower’s name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Accounts Receivable or payment intangibles of the Borrower, (ii) sign the Borrower’s name on any invoice or xxxx of lading relating to any of the Accounts Receivable or payment intangibles of the Borrower, drafts against Account Debtors with respect to Accounts Receivable or payment intangibles of the Borrower, assignments and verifications of Accounts Receivable or payments intangibles and notices to Account Debtors with respect to Accounts Receivable of the Borrower, (iii) send verification of Accounts Receivable or payment intangibles of the Borrower, and (iv) notify the Postal Service authorities to change the address for delivery of mail addressed to the Borrower to such address as such Agent may designate and to do all other acts and things necessary to carry out this Agreement. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designee shall not be liable for any acts of omission or commission (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction), or for any error of judgment or mistake of fact or law; this power being coupled with an interest is irrevocable until all of the Loans and other Obligations under the Loan Documents are paid in full and all of the Loan Documents are terminated.
(d) [Intentionally Omitted]Nothing herein contained shall be construed to constitute any Agent as agent of the Borrower for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable of the Borrower or any instrument received in payment thereof or for any damage resulting therefrom (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
(e) [Intentionally Omitted]If any Account Receivable of the Borrower includes a charge for any tax payable to any Governmental Authority, each Agent is hereby authorized (but in no event obligated) in its discretion to pay the amount thereof to the proper taxing authority for the Borrower’s account and to charge the Borrower therefor. The Borrower shall notify the Agents if any Account Receivable of the Borrower includes any taxes due to any such Governmental Authority and, in the absence of such notice, the Agents shall have the right to retain the full proceeds of such Account Receivable and shall not be liable for any taxes that may be due by reason of the sale and delivery creating such Account Receivable.
(f) [Intentionally Omitted].
(g) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies of the Agents and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by law.
Appears in 1 contract
Collection of Accounts Receivable; Management of Collateral. (a) The Parent and its Subsidiaries On or prior to the Effective Date, the Borrowers shall assist the Administrative Agent Agents in (i) acquiring control over the Existing Lockboxes or, if requested by the Agents, establishing, and, during the term of this Agreement, maintaining one or more replacement lockboxes in the name of the Administrative Agent and identified on Schedule 8.01 hereto (collectively, the “Lockboxes”"LOCKBOXES") with the Existing Lockbox Bank or other financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower Borrowers and reasonably acceptable to the Administrative Agent Agents in its their sole discretion (each being referred to as an “Account Control Bank”a "LOCKBOX BANK"), and (ii) establishing, and during the term of this Agreement, maintaining deposit accounts (each, each a “Control Account” "COLLECTION ACCOUNT" and, collectively, the “Control Accounts”"COLLECTION ACCOUNTS") with each Account Control Bank. The Parent and its Subsidiaries shall assist in the name of the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control each Lockbox Bank. The Parent and its Subsidiaries Each Borrower shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its Account Debtors and Credit Card ProcessorsDebtors, with respect to Accounts Receivable of such Person (and Physical Electronics shall so direct the BorrowerSpecified Joint Venture), to remit all payments payment to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account payments as directed by the Administrative Agent and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Collection Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that . Until the Administrative Agent has advised the Parent to the contrary after the occurrence and its Subsidiaries shall not be required to so instruct during the continuance of an Account Debtor if (i) Event of Default, the aggregate amount of Borrowers may and will enforce, collect and receive all amounts owing on the Accounts Receivable related to of the Borrowers for the Administrative Agent's benefit and on the Administrative Agent's behalf, but at the Borrowers' joint and several expense; such Account Debtor was less than $25,000 privilege shall terminate, at the election of any Agent, upon the occurrence and during the most recently ended 12 month period, and (ii) the aggregate amount continuance of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month periodany Event of Default. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by the Parent or any of its Subsidiaries Borrowers from any Account Debtor, as proceeds from their Accounts ReceivableReceivable of such Borrower, or as proceeds of any other Collateral, shall be promptly deposited by the Parent or such Subsidiaries in original form into a Control Account.
(b) Each Account Control Bank shall establish and maintain Account Control Agreements regarding the Control Accounts with the Administrative Agent and the applicable Loan Party, in form and substance reasonably acceptable to the Agents; provided that the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition of the funds in the applicable Control Account without further consent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) of the proviso in the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required Lenders. No checks, drafts or other instruments received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such checks, drafts or instruments have actually been collected.
(c) [Intentionally Omitted].
(d) [Intentionally Omitted].
(e) [Intentionally Omitted].
(f) [Intentionally Omitted].
(g) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies of the Agents and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by law.other
Appears in 1 contract
Samples: Financing Agreement (High Voltage Engineering Corp)
Collection of Accounts Receivable; Management of Collateral. (a) The Parent and its Subsidiaries Within on or prior to the Effective Date, the Borrowers shall assist the Administrative Agent in (i) establishing, and, during the term of this Agreement, maintaining one or more lockboxes in the name of the Administrative Agent which shall be identified on Schedule 8.01 hereto in writing (collectively, the “"Lockboxes”") with the financial institutions set forth on Schedule 8.01 hereto in such writing or such other financial institutions selected by the Borrower Borrowers and reasonably acceptable to the Administrative Agent in its sole discretion (each being referred to as an “Account Control a "Lockbox Bank”"), and (ii) establishing, and during the term of this Agreement, maintaining deposit accounts an account (each, a “Control "Collection Account” " and, collectively, the “Control "Collection Accounts”") in the name of the Administrative Agent with each Account Control Lockbox Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries Borrowers shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its their Account Debtors and Credit Card ProcessorsDebtors, with respect to Accounts Receivable of the BorrowerBorrowers, to remit all payments payment to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account payments as directed by the Administrative Agent and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Collection Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that . Until the Parent Administrative Agent has advised the Administrative Borrower to the contrary after the occurrence and its Subsidiaries shall not be required to so instruct during the continuance of an Account Debtor if (i) Event of Default, the aggregate amount of Borrowers may and will enforce, collect and receive all amounts owing on the Accounts Receivable related to of the Borrowers for the Administrative Agent's benefit and on the Administrative Agent's behalf, but at the Borrowers' expense; such Account Debtor was less than $25,000 privilege shall terminate, at the election of any Agent, upon the occurrence and during the most recently ended 12 month period, and (ii) the aggregate amount continuance of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month periodany Event of Default. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by the Parent or any of its Subsidiaries Borrowers from any Account Debtor, as proceeds from their Accounts ReceivableReceivable of the Borrowers, or as proceeds of any other Collateral, shall be promptly held by the Borrowers in trust for the Agents and the Lenders and upon receipt be deposited by the Parent or such Subsidiaries Borrowers in original form and no later than the next Business Day after receipt thereof into a Control Collection Account.
(b) Each Account Control Bank . The Borrowers shall establish and maintain Account Control Agreements regarding the Control Accounts not commingle such collections with the Borrowers' own funds or the funds of any Subsidiary or Affiliate of the Borrowers or with the proceeds of any assets not included in the Collateral. The Administrative Agent and shall charge the applicable Loan Party, in form and substance reasonably acceptable Account on the last day of each month with two (2) collection days for all such collections. Subject to the Agents; provided that the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in any deposit account or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agentprovisions of Section 2.05(c)(v) hereof, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition of the all funds received in the applicable Control Collection Account without further consent shall be sent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff wire transfer or recoupment or any other claim against the applicable Control Account other than for Automated Clearing House Inc. payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts in the applicable Control Account Payment Office to be credited to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) 's Account for application at the end of each Business Day to reduce the then principal balance of the proviso in Revolving Loans, conditional upon final payment to the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required LendersAgent. No checks, drafts or other instruments instrument received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such checks, drafts or instruments have actually been collected.
(b) After the occurrence and during the continuance of an Event of Default, the Collateral Agent may send a notice of assignment and/or notice of the Lenders' security interest to any and all Account Debtors or third parties holding or otherwise concerned with any of the Collateral, and thereafter the Collateral Agent shall have the sole right to collect the Accounts Receivable and/or take possession of the Collateral and the books and records relating thereto. The Borrowers shall not, without prior written consent of the Collateral Agent, grant any extension of time of payment of any Account Receivable, compromise or settle any Account Receivable for less than the full amount thereof, release, in whole or in part, any Person or property liable for the payment thereof, or allow any credit or discount whatsoever thereon, except, in the absence of a continuing Event of Default, as permitted by Section 7.02(o).
(c) [Intentionally Omitted]The Borrowers hereby appoint each Agent or its designee on behalf of such Agent as the Borrowers' attorney-in-fact with power exercisable during the continuance of any Event of Default to endorse the Borrowers' names upon any notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Accounts Receivable, to sign the Borrowers' names on any invoice or bill xx lading relating to any of the Accounts Receivable, drafts against Account Debtors with respect to Accounts Receivable, assignments and verifications of Accounts Receivable and notices to Account Debtors with respect to Accounts Receivables, to send verification of Accounts Receivable, and, to notify the Postal Service authorities to change the address for delivery of mail addressed to the Borrowers to such address as such Agent may designate and to do all other acts and things necessary to carry out this Agreement. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designate shall not be liable for any acts of omission or commission (other than acts or omissions constituting gross negligence or willful misconduct), or for any error of judgment or mistake of fact or law; this power being coupled with an interest is irrevocable until all of the Loans, Reimbursement Obligations, Letter of Credit Obligations and other Obligations under the Loan Documents are paid in full and all of the Loan Documents are terminated.
(d) [Intentionally Omitted]Nothing herein contained shall be construed to constitute any Agent as agent of the Borrowers for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts or omissions of the Agents constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable or any instrument received in payment thereof or for any damage resulting therefrom (other than acts or omissions of the Agents constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by the Borrowers of any of the terms and conditions thereof.
(e) [Intentionally Omitted].
If any Account Receivable includes a charge for any tax payable to any Governmental Authority, the Agents are hereby authorized (fbut in no event obligated) [Intentionally Omitted].
(g) Notwithstanding in their discretion to pay the amount thereof to the proper taxing authority for the Borrowers' account and to charge the Borrowers therefor. The Administrative Borrower shall notify the Agents if any other terms set forth Account Receivable includes any taxes due to any such Governmental Authority and, in the Loan Documentsabsence of such notice, the rights Agents shall have the right to retain the full proceeds of such Account Receivable and remedies shall not be liable for any taxes that may be due by reason of the Agents sale and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by lawdelivery creating such Account Receivable.
Appears in 1 contract
Collection of Accounts Receivable; Management of Collateral. (a) The Parent and its Subsidiaries On or prior to the Interim Facility Effective Date, the Borrower shall assist the Administrative Agent in (i) establishing, and, during the term of this Agreement, maintaining one or more lockboxes in the name of the Administrative Agent and identified on Schedule 8.01 hereto (collectively, the “Lockboxes”) with the financial institutions set forth on Schedule 8.01 hereto or such other financial institutions selected by the Borrower and reasonably acceptable to the Administrative Agent in its sole discretion (each being referred to as an a “Account Control Lockbox Bank”), and (ii) establishing, and during the term of this Agreement, maintaining deposit accounts an account (each, a “Control Collection Account” and, collectively, the “Control Collection Accounts”) in the name of the Administrative Agent with each Account Control Lockbox Bank. The Parent and its Subsidiaries shall assist the Administrative Agent in entering into Account Control Agreements relating to the Control Accounts with the applicable Loan Party, Administrative Agent, and the Account Control Bank. The Parent and its Subsidiaries Borrower shall irrevocably instruct (it being understood and agreed that payment instructions set forth on invoices are sufficient to satisfy such instruction) its Account Debtors and Credit Card ProcessorsDebtors, with respect to Accounts Receivable of the Borrower, to remit all payments to be made by checks or other drafts to the Lockboxes and to remit all payments to be made by wire transfer or by Automated Clearing House, Inc. payment to a Control Account as directed by the Administrative Agent and shall instruct each Lockbox Bank to deposit all amounts received in its Lockbox to the Control Collection Account at such Lockbox Bank on the day received or, if such day is not a Business Day, on the next succeeding Business Day; provided that . Until the Parent Administrative Agent has advised the Borrower to the contrary after the occurrence and its Subsidiaries shall not be required to so instruct during the continuance of an Account Debtor if (i) Event of Default, the aggregate amount of Borrower may and will enforce, collect and receive all amounts owing on the Accounts Receivable related to of the Borrower for the Administrative Agent’s benefit and on the Administrative Agent’s behalf, but at the Borrower’s expense; such Account Debtor was less than $25,000 privilege shall terminate, at the election of any Agent, upon the occurrence and during the most recently ended 12 month period, and (ii) the aggregate amount continuance of the Accounts Receivable related to all Account Debtors to whom no such instruction is given was less than $50,000 during the most recently ended 12 month periodan Event of Default. All checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness received directly by the Parent or any of its Subsidiaries Borrower from any Account Debtor, as proceeds from their Accounts ReceivableReceivable of the Borrower, or as proceeds of any other Collateral, shall be promptly held by the Borrower in trust for the Agents and the Lenders and upon receipt be deposited by the Parent or such Subsidiaries Borrower in original form and no later than the next Business Day after receipt thereof into a Control Collection Account.
(b) Each Account Control Bank . The Borrower shall establish and maintain Account Control Agreements regarding the Control Accounts not commingle such collections with the Administrative Agent and Borrower’s own funds or the applicable Loan Party, in form and substance reasonably acceptable to the Agents; provided that the Loan Parties may have investments in an aggregate amount not to exceed $100,000 in funds of any deposit account Subsidiary or securities account without delivering to Agents an Account Control Agreement with respect thereto; provided further that the Grantors need not deliver an Account Control Agreement for any deposit account that is used solely as a payroll account. Except as otherwise agreed to in writing by the Administrative Agent, each such Account Control Agreement shall provide, among other things, that (i) the Account Control Bank will comply with any instructions originated by Administrative Agent directing the disposition Affiliate of the funds Borrower or with the proceeds of any assets not included in the applicable Control Account without further consent by the applicable Loan Party, (ii) the Account Bank has no rights of setoff or recoupment or any other claim against the applicable Control Account other than for payment of its service fees and other charges directly related to the administration of such Control Account and for returned checks or other items of payment, and (iii) from and after the date (the “Triggering Event Date”) that the Account Control Bank receives written notification from the Administrative Agent (the “Triggering Event Notice”), the Account Control Bank will forward, by daily sweep, all amounts Collateral. All funds received in the applicable Control Collection Account shall be sent by wire transfer or Automated Clearing House, Inc. payment to the Administrative Agent’s Account. Administrative Agent agrees that it shall not (a) originate any instructions contemplated by clause (i) Account for application at the end of each Business Day to reduce the then principal balance of the proviso in Revolving Loans, conditional upon final payment to the immediately preceding sentence or (b) provide a Triggering Event Notice, in each case unless and until an Event of Default has occurred and is continuing. Once an Event of Default has occurred and is continuing, (x) Administrative Agent shall be free to exercise its right to issue a Triggering Event Notice, and (y) Administrative Agent shall issue a Triggering Event Notice upon the request of the Required LendersAgent. No checks, drafts or other instruments received by the Administrative Agent shall constitute final payment to the Administrative Agent unless and until such checks, drafts or instruments have actually been collected.
(b) After the occurrence and during the continuance of an Event of Default (but subject to any requirements in the Interim Bankruptcy Court Order or Final Bankruptcy Court Order that a certain period of time pass prior to the exercise of remedies), the Collateral Agent may, and at the direction of the Required Lenders shall, send a notice of assignment and/or notice of the Lenders’ security interest to any and all Account Debtors and, thereafter, the Collateral Agent shall have the sole right to collect the Accounts Receivable and payment intangibles of the Borrower and its Subsidiaries and/or take possession of the Collateral and the books and records relating thereto. After the occurrence and during the continuation of an Event of Default, the Borrower and its Subsidiaries shall not, without prior written consent of the Required Lenders, grant any extension of time of payment of any Account Receivable or payment intangible, compromise or settle any Account Receivable or payment intangible for less than the full amount thereof, release, in whole or in part, any Person or property liable for the payment thereof, or allow any credit or discount whatsoever thereon.
(c) [Intentionally Omitted]The Borrower hereby appoints each Agent or its designee on behalf of such Agent as the Borrower’s attorney-in-fact with power exercisable during the continuance of an Event of Default (but subject to any requirements in the Interim Bankruptcy Court Order or Final Bankruptcy Court Order that a certain period of time pass prior to the exercise of remedies) to (i) endorse the Borrower’s name upon any notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Accounts Receivable or payment intangibles of the Borrower, (ii) sign the Borrower’s name on any invoice or xxxx of lading relating to any of the Accounts Receivable or payment intangibles of the Borrower, drafts against Account Debtors with respect to Accounts Receivable or payment intangibles of the Borrower, assignments and verifications of Accounts Receivable or payment intangibles and notices to Account Debtors with respect to Accounts Receivable or payment intangibles of the Borrower, (iii) send verification of Accounts Receivable of the Borrower, (iv) after the occurrence and during the continuation of an Event of Default, notify the Postal Service authorities to change the address for delivery of mail addressed to the Borrower to such address as such Agent may designate, retain all mail relating to the Collateral, and forward all other mail to the Borrower, which the Agents agree to do promptly;, and (v) to do all other acts and things necessary to carry out this Agreement. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designee shall not be liable for any acts of omission or commission (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction), or for any error of judgment or mistake of fact or law; this power being coupled with an interest is irrevocable until all of the Loans and other Obligations under the Loan Documents are paid in full and all of the Commitments are terminated.
(d) [Intentionally Omitted]Nothing herein contained shall be construed to constitute any Agent as agent of the Borrower for any purpose whatsoever, and the Agents shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same may be located and regardless of the cause thereof (other than from acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Accounts Receivable of the Borrower or any instrument received in payment thereof or for any damage resulting therefrom (other than acts of omission or commission constituting gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by anything herein or in any assignment or otherwise, do not assume any of the obligations under any contract or agreement assigned to any Agent and shall not be responsible in any way for the performance by the Borrower of any of the terms and conditions thereof.
(e) [Intentionally Omitted]If any Account Receivable of the Borrower includes a charge for any tax payable to any Governmental Authority, each Agent is hereby authorized (but in no event obligated) in its discretion to pay the amount thereof to the proper taxing authority for the Borrower’s account and to charge the Borrower therefor. The Borrower shall notify the Agents if any Account Receivable of the Borrower includes any taxes due to any such Governmental Authority and, in the absence of such notice, the Agents shall have the right to retain the full proceeds of such Account Receivable and shall not be liable for any taxes that may be due by reason of the sale and delivery creating such Account Receivable.
(f) [Intentionally Omitted].
(g) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies of the Agents and the Lenders herein provided, and the obligations of the Loan Parties set forth herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of, any other rights, remedies or obligations set forth in any other Loan Document or as provided by law.
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