Concentration Account. Each Control Agreement with respect to a Controlled Deposit Account shall require that, during a Dominion Trigger Period, the Controlled Account Bank transfer all cash receipts and other collections by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Administrative Agent at BMO (the “Concentration Account”), and if separate concentration accounts are maintained at the direction of the Administrative Agent for Dollars and another for Canadian Dollars, then such receipts and collections of same currency shall be directed into the corresponding Concentration Account for such currency (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required to be automatically swept into the Concentration Account. The Concentration Account shall at all times be under the sole dominion and control of the Administrative Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Concentration Account shall be applied as provided in Section 4.04(c) below. If, notwithstanding the provisions of this Section 4.04, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds), the Concentration Account, or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent. Notwithstanding the foregoing, except as expressly provided in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during a Dominion Trigger Period, shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation of this paragraph, in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Matrix Service Co), Credit Agreement (Matrix Service Co)
Concentration Account. Each Control Agreement with respect to a Controlled Deposit Account shall require that, during a Dominion Trigger Period, the Controlled Account Bank transfer all cash receipts and other collections by ACH or wire transfer no less frequently than daily daily, (x) so long as the “Facility Termination Date” (as defined in the Revolving Credit Agreement) has not occurred, to the “Concentration Account” (as defined in the Revolving Credit Agreement) (the “Revolving Collection Account”) and (y) thereafter, to such other accounts as directed by the Administrative Agent in its sole discretion (the “Term Loan Collection Accounts” and together with the Revolving Collection Account, the “Collection Accounts”) (whether or not there are then any outstanding Revolving Obligations or Obligations) to the concentration account maintained by the Administrative Agent at BMO (the “Concentration Account”), and if separate concentration accounts are maintained at the direction of the Administrative Agent for Dollars and another for Canadian Dollars, then such receipts and collections of same currency shall be directed into the corresponding Concentration Account for such currency (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required to be automatically swept into the Concentration Account. The Concentration Revolving Collection Account shall at all times be under the sole dominion and control of the Revolving Agent. The Term Loan Collection Accounts shall at all times be under the sole dominion and control of the Administrative Agent or of the Administrative Agent’s financing source. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration AccountCollection Accounts, (ii) the funds on deposit in the Concentration Account Collections Accounts shall at all times be collateral security for all of the Obligations and the Revolving Obligations and (iii) the funds on deposit in the Concentration Account Collection Accounts shall be applied as provided in Section 4.04(c) belowbelow or the Revolving Credit Agreement, as applicable. IfIn the event that, notwithstanding the provisions of this Section 4.04, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent or Revolving Agent, as applicable, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, subject to the Post-Closing Agreement, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds)Period, the Concentration a Collection Account, or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent or the Revolving Agent. Notwithstanding the foregoing, except as expressly provided in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during a Dominion Trigger Period, shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation of this paragraph, in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunder.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Purple Innovation, Inc.), Term Loan Credit Agreement (Key Tronic Corp)
Concentration Account. Each Control Agreement with respect (i) The Borrower has established the Concentration Account subject to a Controlled Deposit fully executed Concentration Account shall require that, during a Dominion Trigger Period, the Controlled Account Bank transfer all cash receipts and other collections by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by Agreement. The Borrower agrees that the Administrative Agent at BMO (the “Concentration Account”), shall have exclusive dominion and if separate concentration accounts are maintained at the direction control of the Administrative Agent for Dollars and another for Canadian Dollars, then such receipts and collections of same currency shall be directed into the corresponding Concentration Account for such currency and all monies, instruments and other property from time to time on deposit therein.
(ii) The Borrower (or the Servicer on Borrower’s behalf) has instructed all Collection Account Banks that on a daily basis all collected and for the avoidance of doubt, available funds on deposit in each such account shall constitute a Concentration Collection Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required are to be automatically swept into transferred to the Concentration Account. The Concentration Account shall at Bank has been instructed by the Borrower and the Servicer to automatically transfer all times be under the sole dominion collected and control of the Administrative Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, (ii) the available funds on deposit in the Concentration Account shall at all times be collateral security for all of to the Obligations and Agent Account on a daily basis.
(iii) the funds on deposit in If, for any reason, the Concentration Account Agreement relating to the Concentration Account terminates or the Concentration Account Bank fails to comply with its obligations under such Concentration Account Agreement, then the Borrower shall be applied as provided in Section 4.04(c) below. Ifpromptly notify the Administrative Agent thereof and the Borrower, notwithstanding the provisions of this Section 4.04, any Loan Party receives Servicer or otherwise has dominion and control of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, as the case may be, shall instruct all Collection Account Banks who had previously been instructed to make wire payments to the Concentration Account maintained at any such Concentration Account Bank to make all future payments to a new Concentration Account in accordance with this Section 6.01(b)(iii). The Borrower shall not be commingled close the Concentration Account unless it shall have (A) received the prior written consent of the Administrative Agent, (B) established a new account with any the same Concentration Account Bank or with a new depositary institution satisfactory to the Administrative Agent, (C) entered into an agreement covering such new account with such Concentration Account Bank or with such new depositary institution substantially in the form of the Concentration Account Agreement or that is satisfactory in all respects to the Administrative Agent (whereupon, for all purposes of this Agreement and the other Related Documents, such Loan Party’s other funds or deposited in any new account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds), shall become the Concentration Account, or dealt with such new agreement shall become a Concentration Account Agreement and any new depositary institution shall become the Concentration Account Bank), and (D) taken all such action as the Administrative Agent shall reasonably require to grant and perfect a first priority Lien in such other fashion new Concentration Account to the Lender under Section 7.01 of this Agreement. Except as such Loan Party may be instructed permitted by this Section 6.01(b), the Borrower shall not, and shall not permit the Servicer to open a new Concentration Account without the prior written consent of the Administrative Agent. Notwithstanding the foregoing, except as expressly provided in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during a Dominion Trigger Period, shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation of this paragraph, in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunder.
Appears in 2 contracts
Samples: Receivables Funding and Administration Agreement (RBS Global Inc), Receivables Funding and Administration Agreement (Rexnord LLC)
Concentration Account. Each Control Agreement with respect On or prior to a Controlled Deposit Account shall require that, during a Dominion Trigger Periodthe Transfer Date, the Controlled Account Bank transfer all cash receipts Servicer, for the benefit of the Beneficiaries, shall establish and other collections by ACH maintain or wire transfer no less frequently than daily (cause to be established and whether or not there are then any outstanding Obligations) to maintained in the concentration name of the Trustee, on behalf of the Trust, with an Eligible Institution a segregated trust account maintained accessible by the Administrative Agent at BMO Trustee (such account being the “"Concentration Account”" and such institution holding such account being the "Concentration Account Bank"), and if separate concentration accounts such account bearing a designation clearly indicating that the funds deposited therein are maintained at held for the direction benefit of the Administrative Agent for Dollars Beneficiaries. The Trustee shall possess all right, title and another for Canadian Dollars, then such receipts interest in and collections of same currency shall be directed into to all funds from time to time on deposit in the corresponding Concentration Account for such currency (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required to be automatically swept into the Concentration Accountall proceeds thereof. The Concentration Account shall at all times be under the sole dominion and control of the Administrative AgentTrustee for the benefit of the Beneficiaries. The Loan Parties hereby acknowledge and agree Except as expressly provided in this Agreement, the Servicer agrees that (i) the Loan Parties it shall have no right of withdrawal from set-off or banker's lien against, and no right to otherwise deduct from, any funds held in the Concentration Account for any amount owed to it by the Trustee, the Trust or any Beneficiary. The Servicer shall cause Collections to be deposited into the Concentration Account on each Business Day as promptly as is reasonably practicable after receipt in a Collection Account. The Transferor will require the Originators to mail any Collections received by them to a Lock Box or deposit any Collections received by any of them into a Collection Account within five Business Days following the Business Day on which such Collections are so received. Notwithstanding the foregoing, if and to the extent that funds that are not Collections are deposited into the Concentration Account, the Servicer may direct in writing the Trustee to withdraw such funds from the Concentration Account and deposit them in the Transferor's Account. If, at any time, the institution holding the Concentration Account ceases to be an Eligible Institution, the Servicer, upon obtaining actual Knowledge thereof, for the benefit of the Beneficiaries, shall within 15 Business Days (i) establish a new Concentration Account meeting the conditions specified above with an Eligible Institution, (ii) transfer any cash and/or any investments held therein or with respect thereto to such new Concentration Account and (iii) in the case of any new Concentration Account, deliver to all Collection Account Banks new Collection Account Letters (with copies thereof to the Trustee) referring to such new Concentration Account, and from the date such new Concentration Account is established, it shall be the "Concentration Account". Pursuant to the authority granted to the Servicer in Section 3.01, the Servicer shall have the power to instruct the Trustee to make withdrawals and payments from the Concentration Account for the purposes of carrying out the Servicer's or the Trustee's duties specified in this Agreement. Funds on deposit in the Concentration Account, shall at the direction of the Servicer be invested by the Trustee or the Eligible Institution maintaining such accounts in Eligible Investments as instructed by the Servicer in writing (which may be a standing instruction) (or if not so instructed, then invested by the Trustee or the Eligible Institution maintaining such accounts in any Eligible Investments listed in clause (b) of the definition of Eligible Investments). All such Eligible Investments shall be held by the Trustee or the Eligible Institution maintaining such accounts for the benefit of the Beneficiaries. Such funds shall be invested in Eligible Investments that will mature so that funds will be available in amounts sufficient for the Servicer to make each distribution required under the applicable Supplement on the Distribution Date with respect to such Collection Period. Funds deposited in the Concentration Account on a Determination Date with respect to the next following Distribution Date are required to be invested overnight. On each Distribution Date, all interest and other investment earnings (net of losses and investment expenses) received on funds on deposit in the Concentration Account shall at all times be collateral security for all of Account, to the Obligations and (iii) extent such investment income is not needed to pay the funds Holders on deposit in the Concentration Account such Distribution Date, shall be applied as provided in Section 4.04(c) below. If, notwithstanding paid to the provisions of this Section 4.04, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds), the Concentration Account, or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent. Notwithstanding the foregoingTransferor, except as expressly provided in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during a Dominion Trigger Period, shall be deposited directly into a segregated Controlled Deposit Account (and otherwise specified in any eventSupplement. The Trustee is hereby authorized, not unless otherwise directed by the Servicer, to effect transactions in Eligible Investments through a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion capital markets affiliate of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation of this paragraph, in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunderTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Zenith Electronics Corp)
Concentration Account. Each Control Agreement with respect to a Controlled Deposit Account shall require that, during a Dominion Trigger Period, the Controlled Account Bank transfer all cash receipts and other collections by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligationsa) to the concentration account maintained by the The Administrative Agent at BMO shall maintain an account styled "Giant Industries Concentration Account" (the “Concentration Account”"CONCENTRATION ACCOUNT"), and if separate concentration accounts are maintained at the direction of the Administrative Agent for Dollars and another for Canadian Dollars, then such receipts and collections of same currency shall be directed into the corresponding Concentration Account for such currency (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required to be automatically swept into the Concentration Account. The Concentration Account shall at all times be under a blocked account from which only authorized officers of the sole dominion Administrative Agent may withdraw or authorize withdrawal of funds. Pursuant to the terms of the Deposit Account Control Agreements and control the Investment Account Control Agreements, Depository Banks and, to the extent applicable, the Brokers must transfer funds on deposit in the Deposit Accounts (as defined in the Deposit Account Control Agreements) and the Investment Accounts (as defined in the Investment Account Control Agreements) to the Concentration Account upon receipt of notice from the Administrative Agent. The Loan Parties hereby acknowledge and agree that Administrative Agent is authorized to give such notice as provided in SECTION 2.07(c).
(ib) the Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds All amounts on deposit in the Concentration Account shall at all times be held by the Administrative Agent as collateral security for all the payment and performance of the Obligations Obligations. The Administrative Agent shall have exclusive dominion and control, including without limitation the exclusive right of withdrawal, over the Concentration Account. The Administrative Agent shall permit the disbursal of funds from the Concentration Account, upon the Company's request, to the Company or to an account designated by the Company, as follows:
(i) Provided that no Default or Event of Default has occurred and is continuing, upon written request made by the Company, the Administrative Agent shall transfer funds to an unrestricted deposit account of the Company if together with such request the Company certifies that (A) no Default or Event of Default has occurred and is continuing, and (B) no part of such funds will be used for any (x) expenditure or other payment or transfer of funds to any Person in excess of $500,000, (y) payment of any extraordinary items, or (z) payment or transfer of funds to an Affiliate, officer, director or employee except payments in the ordinary course of business; and
(ii) Such other disbursals as may be permitted by the Administrative Agent in its sole discretion.
(c) The Concentration Account shall be a blocked, non-interest ..bearing account held by the Administrative Agent or any Affiliate of the Administrative Agent upon such terms and in such type of account as customary at that depository institution. The Company shall pay any fees charged by such depository institution which fees are of the type customarily charged by such institution with respect to such accounts, and if such fees are not paid by the Company, the institution holding the Concentration Account may deduct them from such account.
(d) The Company hereby irrevocably authorizes the Administrative Agent to apply funds in the Concentration Account as follows, in such order as may be designated by the Administrative Agent: (i) to payment of costs and expenses required to be paid to the Administrative Agent pursuant to SECTION 11.04, and (ii) to payment or prepayment of principal of and interest on the Loans, and (iii) to payment of any other Obligations; provided that if the funds maturity of the Loans has been accelerated, amounts on deposit in the Concentration Account shall be applied as provided in Section 4.04(c) belowto satisfy the Obligations pro rata with obligations to the Swap Providers under Specified Swap Contracts then due and payable. If, notwithstanding the The provisions of SECTION 4.04 shall apply to prepayments made pursuant to this Section 4.042.15.
(e) As security for the payment of all Obligations, any Loan Party receives or otherwise has dominion the Company hereby grants, conveys, assigns, pledges, sets over and control of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for transfers to the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited and creates in any account of such Loan Party the Administrative Agent's favor a Lien on, and shallsecurity interest, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period in (except with respect to Bonded AR Proceeds), i) the Concentration Account, (ii) all contract rights, claims and privileges in respect of the Concentration Account, and (iii) all money, cash, checks, instruments, securities, security entitlements, and other items of value now or dealt hereafter paid, deposited in, credited to, held in (whether for collection, provisionally or otherwise) or otherwise in the possession or under the control of, or in transit to, the depository institution holding the Concentration Account, together with in such other fashion as such Loan Party may be instructed by all proceeds thereof. At any time and from time to time, upon the Administrative Agent. Notwithstanding 's request, the foregoingCompany promptly shall execute and deliver any and all such further instruments and documents as may be necessary, except as expressly provided appropriate or desirable in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien's judgment to obtain the full benefits (including perfection and priority) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during a Dominion Trigger Period, shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited into, security interest created or continue intended to be held in, a segregated Controlled Deposit Account created by this SUBSECTION 2.15 and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) of the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (rights and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation of this paragraph, in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunderpowers herein granted.
Appears in 1 contract
Concentration Account. Each Control Agreement with respect (i) The Borrower has established the Concentration Account subject to a Controlled Deposit fully executed Concentration Account shall require Agreement. The Borrower agrees that, during a Dominion at any time after the continuance of any Trigger PeriodEvent, the Controlled Account Bank transfer all cash receipts and other collections by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Administrative Agent at BMO may (the “Concentration Account”), and if separate concentration accounts are maintained at the direction but is not obligated to) deliver one or more Notices of the Administrative Agent for Dollars and another for Canadian Dollars, then such receipts and collections of same currency shall be directed into the corresponding Concentration Account for such currency (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required Exclusive Control to be automatically swept into the Concentration Account. The Concentration Account shall at all times be under the sole exercise exclusive dominion and control of the Concentration Account and all monies, instruments and other property from time to time on deposit therein.
(ii) [RESERVED].
(iii) If, for any reason, the Concentration Account Agreement relating to the Concentration Account terminates or the Concentration Account Bank fails to comply with its obligations under such Concentration Account Agreement, then the Borrower shall promptly notify the Administrative Agent thereof and the Borrower, the Servicer or the Administrative Agent, as the case may be, shall instruct all Collection Account Banks who had previously been instructed to make wire payments to the Concentration Account maintained at any such Concentration Account Bank to make all future payments to a new Concentration Account in accordance with this Section 6.01(b)(iii). The Loan Parties hereby acknowledge Borrower shall not close the Concentration Account unless it shall have (A) received the prior written consent of the Administrative Agent, (B) established a new account with the same Concentration Account Bank or with a new depositary institution satisfactory to the Administrative Agent, (C) entered into an agreement covering such new account with such Concentration Account Bank or with such new depositary institution substantially in the form of the Concentration Account Agreement or that is satisfactory in all respects to the Administrative Agent (whereupon, for all purposes of this Agreement and agree that (i) the Loan Parties have no right of withdrawal from other Related Documents, such new account shall become the Concentration Account, (ii) the funds on deposit in such new agreement shall become a Concentration Account Agreement and any new depositary institution shall become the Concentration Account shall at all times be collateral security for all of the Obligations Bank), and (iiiD) taken all such action as the funds on deposit Administrative Agent shall reasonably require to grant and perfect a first priority Lien in the such new Concentration Account shall be applied as provided in to the Lender under Section 4.04(c) below. If, notwithstanding the provisions 7.01 of this Agreement. Except as permitted by this Section 4.046.01(b), any Loan Party receives or otherwise has dominion the Borrower shall not, and control shall not permit the Servicer to open a new Concentration Account without the prior written consent of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds), the Concentration Account, or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent. Notwithstanding the foregoing, except as expressly provided in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during a Dominion Trigger Period, shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation of this paragraph, in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunder.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Cumulus Media Inc)
Concentration Account. Each Control Agreement with respect On or prior to a Controlled Deposit Account shall require that, during a Dominion Trigger Periodthe Closing Date, the Controlled Account Bank transfer all cash receipts Collection Agent, for the benefit of the Beneficiaries, shall establish and other collections by ACH maintain or wire transfer no less frequently than daily cause to be established and maintained in the name of the Agent with Bankers Trust Company a segregated trust account (and whether or not there are then any outstanding Obligations) to such account being the concentration account maintained by the Administrative Agent at BMO (the “"Concentration Account”" and such institution holding such account being the "Concentration Account Bank"), and if separate concentration accounts such account bearing a designation clearly indicating that the funds deposited therein are maintained at held for the direction benefit of the Administrative Beneficiaries. The Agent for Dollars shall possess all right, title and another for Canadian Dollars, then such receipts interest in and collections of same currency shall be directed into to all funds from time to time on deposit in the corresponding Concentration Account for such currency (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required to be automatically swept into the Concentration Accountall proceeds thereof. The Concentration Account shall at all times be under the sole dominion and control of the Administrative AgentAgent for the benefit of the Beneficiaries, and neither the Seller, nor any Person claiming by, through or under the Seller, shall have any right, title or interest in, or any right to withdraw any amount from, the Concentration Account. The Loan Parties hereby acknowledge and agree Except as expressly provided, in this Agreement, the Collection Agent agrees that (i) the Loan Parties it shall have no right of withdrawal from the Concentration Accountset-off or banker's lien against, (ii) the and no right to otherwise deduct from, any funds on deposit held in the Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Concentration Account shall be applied as provided in Section 4.04(c) below. If, notwithstanding the provisions of this Section 4.04, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect amount owed to Bonded AR Proceeds), the Concentration Account, or dealt with in such other fashion as such Loan Party may be instructed it by the Administrative AgentTrustee or any Beneficiary. Notwithstanding the foregoing, except as expressly provided in this paragraph, any proceeds or collections of Accounts related The Collection Agent shall cause Collections to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during on each Business Day as promptly as is reasonably practicable after receipt in a Dominion Trigger PeriodLock Box Account, shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit event no later than the day on which such Collections become available funds in such Lock Box Account. At all timesThe Seller will require Maxtor and the Selling Affiliates, if any, to deposit any Collections received by it into a Lock Box Account within two Business Days following the Company shall use Business Day on which such Collections are so received. Notwithstanding the foregoing, if and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need extent that funds that are not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be Collections are deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into , the Collection Agent may direct the Trustee in writing to withdraw such funds from the Concentration Account or any Qualified Account and deposit them in violation the Seller's Account. The Agent hereby authorizes the Trustee to make withdrawals and payments from the Concentration Account, and to invest the funds in the Concentration Account, in accordance with the provisions of this paragraphAgreement. If, at any time, the institution holding the Concentration Account ceases to be an Eligible Institution, the Collection Agent, upon obtaining actual knowledge thereof, shall, within 15 Business Days (i) establish a new Concentration Account meeting the conditions specified above with an Eligible Institution, (ii) transfer any cash and/or any investments held in no event the old Concentration Account or with respect thereto to such new Concentration Account and (iii) in the case of any new Concentration Account, deliver to all Lock Box Banks new Lock Box Agreements (with copies thereof to the Trustee) referring to such new Concentration Account, and from the date such new Concentration Account is established, it shall be the Administrative "Concentration Account". Pursuant to the authority granted to the Collection Agent in Section 6.02, the Collection Agent shall have the power to instruct the Trustee to make withdrawals and payments from the Concentration Account for the purposes of carrying out the Collection Agent's or the Trustee's duties specified in this Agreement. Funds on deposit in the Concentration Account, shall, at the written direction of the Collection Agent, be required to apply such Bonded AR Proceeds against invested by the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunder.Trustee or the Eligible Institution maintaining such
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Maxtor Corp)
Concentration Account. Each Control Agreement with respect to a Controlled Deposit Account shall require (i) The Borrower agrees that, during a Dominion at any time after the continuance of any Trigger PeriodEvent, the Controlled Account Bank transfer all cash receipts and other collections by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Administrative Agent at BMO may (the “Concentration Account”), and if separate concentration accounts are maintained at the direction but is not obligated to) deliver one or more Notices of the Administrative Agent for Dollars and another for Canadian Dollars, then such receipts and collections of same currency shall be directed into the corresponding Concentration Account for such currency (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required Exclusive Control to be automatically swept into the Concentration Account. The Concentration Account shall at all times be under the sole exercise exclusive dominion and control of the Concentration Account and all monies, instruments and other property from time to time on deposit therein.
(ii) The Borrower (or the Servicer on Borrower’s behalf) has instructed all Collection Account Banks that on a daily basis all collected and available funds on deposit in each Collection Account are to be automatically transferred to the Concentration Account.
(iii) If, for any reason, the Concentration Account Agreement relating to the Concentration Account terminates or the Concentration Account Bank fails to comply with its obligations under such Concentration Account Agreement, then the Borrower shall promptly notify the Administrative Agent thereof and the Borrower, the Servicer or the Administrative Agent, as the case may be, shall instruct all Collection Account Banks who had previously been instructed to make wire payments to the Concentration Account maintained at any such Concentration Account Bank to make all future payments to a new Concentration Account in accordance with this Section 6.01(b)(iii). The Loan Parties hereby acknowledge Borrower shall not close the Concentration Account unless it shall have (A) received the prior written consent of the Administrative Agent, (B) established a new account with the same Concentration Account Bank or with a new depositary institution satisfactory to the Administrative Agent, (C) entered into an agreement covering such new account with such Concentration Account Bank or with such new depositary institution substantially in the form of the Concentration Account Agreement or that is satisfactory in all respects to the Administrative Agent (whereupon, for all purposes of this Agreement and agree that (i) the Loan Parties have no right of withdrawal from other Related Documents, such new account shall become the Concentration Account, (ii) the funds on deposit in such new agreement shall become a Concentration Account Agreement and any new depositary institution shall become the Concentration Account shall at all times be collateral security for all of the Obligations Bank), and (iiiD) taken all such action as the funds on deposit Administrative Agent shall reasonably require to grant and perfect a first priority Lien in the such new Concentration Account shall be applied as provided in to the Lender under Section 4.04(c) below. If, notwithstanding the provisions 7.01 of this Agreement. Except as permitted by this Section 4.046.01(b), any Loan Party receives or otherwise has dominion the Borrower shall not, and control shall not permit the Servicer to open a new Concentration Account without the prior written consent of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds), the Concentration Account, or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent. Notwithstanding the foregoing, except as expressly provided in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during a Dominion Trigger Period, shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation of this paragraph, in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunder.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Rexnord Corp)
Concentration Account. Each Control Agreement with respect (i) The Borrower has established the Concentration Account subject to a Controlled Deposit fully executed Concentration Account shall require that, during a Dominion Trigger Period, the Controlled Account Bank transfer all cash receipts and other collections by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by Agreement. The Borrower agrees that the Administrative Agent at BMO (the “Concentration Account”), and if separate concentration accounts are maintained at the direction of the Administrative Agent for Dollars and another for Canadian Dollars, then such receipts and collections of same currency shall be directed into the corresponding Concentration Account for such currency (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required to be automatically swept into the Concentration Account. The Concentration Account shall at all times be under the sole have exclusive dominion and control of the Administrative Agent. The Loan Parties hereby acknowledge Concentration Account and agree that (i) the Loan Parties have no right of withdrawal all monies, instruments and other property from the Concentration Account, time to time on deposit therein.
(ii) The Borrower (or the Servicer on Borrower’s behalf) shall require all Collection Account Banks to automatically transfer to the Concentration Account on a daily basis all collected and available funds on deposit in each Collection Account. The Borrower (or the Servicer on Borrower’s behalf) will require the Concentration Account Bank to automatically transfer all collected and available funds on deposit in the Concentration Account shall at all times be collateral security for all of to the Obligations and Agent Account on a daily basis.
(iii) the funds on deposit in If, for any reason, the Concentration Account Agreement relating to the Concentration Account terminates or the Concentration Account Bank fails to comply with its obligations under such Concentration Account Agreement, then the Borrower shall be applied as provided in Section 4.04(c) below. Ifpromptly notify the Administrative Agent thereof and the Borrower, notwithstanding the provisions of this Section 4.04, any Loan Party receives Servicer or otherwise has dominion and control of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, as the case may be, shall not be commingled instruct all Collection Account Banks who had previously been instructed to make transfers to the Concentration Account maintained at any such Concentration Account Bank to make all future payments to a new Concentration Account in accordance with any this Section 6.01(b)(iii). Neither the Borrower nor the Servicer on the Borrower’s behalf shall close the Concentration Account unless it shall have (A) received the prior written consent of the Administrative Agent, (B) established a new account with the same Concentration Account Bank or with a new depositary institution satisfactory to the Administrative Agent, (C) entered into an agreement covering such Loan Party’s new account with such Concentration Account Bank or with such new depositary institution substantially in the form of the Concentration Account Agreement or that is satisfactory in all respects to the Administrative Agent (whereupon, for all purposes of this Agreement and the other funds or deposited in any Related Documents, such new account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds), shall become the Concentration Account, or dealt with such new agreement shall become a Concentration Account Agreement and any new depositary institution shall become the Concentration Account Bank), and (D) taken all such action as the Administrative Agent shall reasonably require to grant and perfect a first priority Lien in such other fashion new Concentration Account to the Lender under Section 7.01 of this Agreement. Except as such Loan Party may be instructed permitted by this Section 6.01(b), the Borrower shall not, and shall not permit the Servicer to open a new Concentration Account without the prior written consent of the Administrative Agent. Notwithstanding the foregoing, except as expressly provided in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during a Dominion Trigger Period, shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation of this paragraph, in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunder.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Vertis Inc)
Concentration Account. (a) Within sixty days after the Initial Borrowing Date, the Assignors shall cause to be established the Concentration Account with the Concentration Account Bank as referenced in Section 7.18 of the Credit Agreement. Each Control Agreement with respect to a Controlled Deposit Account shall require Assignor hereby agrees that, during a Dominion Trigger Periodwithin sixty days after the Initial Borrowing Date, it shall notify the Controlled Concentration Account Bank transfer all cash receipts and other collections by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to that the concentration account maintained by the Administrative Agent at BMO (the “Concentration Account”), and if separate concentration accounts are maintained at the direction of the Administrative Agent for Dollars and another for Canadian Dollars, then such receipts and collections of same currency shall be directed into the corresponding Concentration Account for such currency (and for maintained with the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required to be automatically swept into the Concentration Account. The Concentration Account shall at all times be Bank by such Assignor is under the sole exclusive dominion and control of the Administrative Collateral Agent and all moneys, instruments and other securities received in such Concentration Account are to be held by the Concentration Account Bank for the benefit of the Collateral Agent. The Loan Parties Furthermore, within sixty days after the Initial Borrowing Date, the Assignors shall cause the Concentration Account Bank to execute and deliver to the Collateral Agent a Concentration Account Consent Letter acknowledging the security interest and exclusive dominion and control of the Collateral Agent in all moneys, instruments and other securities deposited in the Concentration Account. Each Assignor hereby acknowledge transfers to the Collateral Agent the exclusive dominion and agree control over the Concentration Account. Each Assignor hereby represents and warrants that it does not now maintain, and will not in the future maintain, any other account with the Concentration Account Bank other than the Concentration Account; provided, however, that any Assignor may establish and maintain additional Concentration Accounts with the Concentration Account Bank or any new Concentration Account Bank, if (x) in the case of the existing Concentration Account Bank, such Assignor, the Concentration Account Bank and the Collateral Agent shall have entered into an amendment to the existing Concentration Account Consent Letter to include such new Concentration Account under such Concentration Account Consent Letter, such amendment to be in form and substance satisfactory to the Collateral Agent, and (y) in the case of a new Concentration Account Bank (i) the Loan Parties Assignor shall have no right given the Collateral Agent at least 15 days' prior written notice of withdrawal from its intention to establish a new Concentration Account with a new Concentration Account Bank, (ii) such new Concentration Account Bank shall be reasonably acceptable to the Collateral Agent and (iii) such new Concentration Account Bank shall enter into a Concentration Account Consent Letter in the form attached hereto as Annex E with such changes as may be acceptable to the Collateral Agent.
(b) Until an Event of Default shall have occurred and be continuing, each Assignor is hereby authorized by the Collateral Agent to direct the disposition of any and all moneys, instruments and other securities deposited in the Concentration Account for use by the Assignor in any manner permitted by the Credit Agreement.
(c) Upon the occurrence and during the continuance of an Event of Default, the authorization of the Assignors under Section 3.7(b) shall be revoked and all deposits contained in the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit any additional moneys, instruments and other securities subsequently deposited in the Concentration Account shall be transferred to the Cash Collateral Account, to be held by the Collateral Agent as Collateral for the Obligations or applied as to the Obligations in accordance with this Agreement (all such deposits in any such Cash Collateral Account shall constitute "Collateral" for all purposes of this Agreement). Upon the occurrence and during the continuance of an Event of Default, without notice to or assent by any Assignor, the Collateral Agent may apply any or all amounts then in, or thereafter deposited in, the Cash Collateral Account in the manner provided in Section 4.04(c) below. If, notwithstanding the provisions 7.4 of this Section 4.04Agreement. The reasonable out-of-pocket costs and expenses (including reasonable out-of-pocket attorney's fees) of collection, any Loan Party receives whether incurred by an Assignor or otherwise has dominion and control of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Collateral Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds), the Concentration Account, or dealt with in such other fashion as such Loan Party may be instructed borne by the Administrative Agent. Notwithstanding the foregoing, except as expressly provided in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during a Dominion Trigger Period, shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation of this paragraph, in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunderAssignors.
Appears in 1 contract
Concentration Account. Each Control Agreement with (a) The Grantors shall instruct all account debtors and other Persons obligated in respect of any Accounts or in respect of any Rolling Stock Revenues to make all payments in respect of such Accounts or Rolling Stock Revenues either (i) directly to the Agent (by instructing that such payments be remitted to a Controlled Deposit Account post office box which shall require thatbe in the name and under the control of the Agent) or (ii) to one or more banks in any state (other than Louisiana) in the United States (by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such bank) under a Lockbox Letter substantially in the form of Exhibit E hereto duly executed by the Grantors and such bank or under other arrangements, during a Dominion Trigger Periodin form and substance satisfactory to the Agent, pursuant to which the Controlled Account Bank transfer all cash receipts and Grantors shall have irrevocably instructed such other collections by ACH or wire transfer no less frequently than daily bank (and whether or not there are then any outstanding Obligationssuch other bank shall have agreed) to remit all proceeds of such payments directly to the concentration account maintained by Agent for deposit into the Administrative Concentration Account or as the Agent at BMO (may otherwise instruct such other bank. All such payments made to the “Agent shall be deposited in the Concentration Account”). In addition to the foregoing, and each Grantor agrees that if separate concentration accounts are maintained at the direction proceeds of any Collateral hereunder (including the Administrative Agent for Dollars and another for Canadian Dollars, then such receipts and collections payments made in respect of same currency Accounts or Rolling Stock Revenues) shall be directed into the corresponding Concentration Account for received by it when an Event of Default has occurred and is continuing, it shall as promptly as possible deposit such currency (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required to be automatically swept proceeds into the Concentration Account. Until so deposited, all such proceeds shall be held in trust by the Grantors for and as the property of the Agent and the DIP Lenders and shall not be commingled with any other funds or property of the Grantors.
(b) The balance from time to time standing to the credit of the Concentration Account shall at all times be under the sole dominion and control of the Administrative Agent. The Loan Parties hereby acknowledge and agree that shall, except (i) upon the Loan Parties have no right occurrence and continuation of withdrawal from the Concentration Account, a Default and (ii) as provided by Section 2.13 of the funds DIP Credit Agreement, be distributed to the Grantors upon the order of the Grantors. If immediately available cash on deposit in the Concentration Account is not sufficient to make any distribution to the Grantors referred to in the previous sentence of this Section 6(b), the Agent shall at all times liquidate as promptly as practicable Liquid Investments (as defined below) as required to obtain sufficient cash to make such distribution and, notwithstanding any other provision of this Section 6, such distribution (other than the distribution of any immediately available cash then on deposit) shall not be collateral security for made until such liquidation has taken place. Upon the occurrence and continuation of an Event of Default, the Agent shall, if so instructed by the Required DIP Lenders, apply or cause to be applied (subject to collection) any or all of the balance from time to time standing to the credit of the Concentration Account in the manner specified in Section 17.
(c) Any income received by the Agent with respect to the balance from time to time standing to the credit of the Concentration Account, including any interest or capital gains on Liquid Investments (as defined below), shall remain, or be deposited, in the Concentration Account. All right, title and interest in and to the cash amounts on deposit from time to time in the Concentration Account together with any Liquid Investments from time to time made pursuant to Subsection 6(d) hereof shall vest in the Agent, shall constitute part of the Collateral hereunder and shall not constitute payment of the Obligations and until applied thereto as hereinafter provided.
(iiid) the funds Amounts on deposit in the Concentration Account shall be applied invested and re-invested from time to time in such Liquid Investments as provided in Section 4.04(c) below. Ifthe Grantors shall determine, notwithstanding the provisions of this Section 4.04, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections described above, such proceeds and collections which Liquid Investments shall be held in trust by such Loan Party for the Administrative name and be under the control of the Agent, shall not be commingled with any PROVIDED that, if an Event of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds), the Concentration Account, or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent. Notwithstanding the foregoing, except as expressly provided in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during a Dominion Trigger Period, shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion of the project related to such Bonded Job Site (so long as no default Default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation of this paragraph, in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunder.is
Appears in 1 contract
Samples: Security and Pledge Agreement (Us Office Products Co)
Concentration Account. Each Control The Borrower, as an Assignor, has established, or will as promptly as practicable (and in any event on or prior to February 15, 2001) establish, with a banking institution satisfactory to the Administrative Agent and Collateral Agent (the "Concentration Account Bank"), in the name of the Collateral Agent for the benefit of the Secured Creditors, an account (the "Concentration Account"), which account shall be maintained and managed in accordance with the terms and provisions of the Concentration Account Agreement and into which there shall be deposited all payments made with respect to a Controlled Deposit the Collateral (including, without limitation, all moneys, securities and instruments received in each Lockbox in the manner set forth in the Lockbox Agreement). All money, securities and instruments at any time deposited or held in the Concentration Account hereunder shall require that, during a Dominion Trigger Periodbe held by the Concentration Account Bank for the benefit of the Collateral Agent. Furthermore, the Controlled Borrower and the Concentration Account Bank transfer all cash receipts shall duly execute and other collections by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) deliver to the concentration account maintained by the Administrative Collateral Agent at BMO (the “Concentration Account”), and if separate concentration accounts are maintained at the direction of the Administrative Agent for Dollars and another for Canadian Dollars, then such receipts and collections of same currency shall be directed into the corresponding Concentration Account for such currency (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held Agreement in a Controlled Deposit Account shall not be the form required to be automatically swept into by Section 4.03 of the Concentration Account. The Credit Agreement which Concentration Account shall at all times be under Agreement shall, among other things, acknowledge the sole security interest and the dominion and control of the Administrative Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds on deposit Collateral Agent in the Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in established with the Concentration Account Bank and shall be applied as provided in Section 4.04(c) below. If, notwithstanding contain the provisions agreement of this Section 4.04, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds), the Concentration Account, or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent. Notwithstanding the foregoing, except as expressly provided in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during Bank that, following its receipt of a Dominion Trigger Periodnotice from the Collateral Agent, it shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect thereafter transmit daily to the Bonding Obligations related to such Bonded Job Site) occursCollateral Agent all cash, then the Bonded AR Proceeds for such Bonded Job Site need not be instruments and other securities and all collected funds received in respect of any securities or instruments deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before Upon the occurrence and during the continuance of a Dominion Trigger Period (and such amendment is in form and scope acceptable any Event of Default, the Collateral Agent shall be entitled to the Administrative Agent), apply any or all amounts then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited intoin, or continue to be held thereafter deposited in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation the manner provided in Section 7.4 of this paragraphAgreement. The reasonable costs and expenses (including reasonable attorney's fees) of collection, whether incurred by an Assignor or the Collateral Agent, shall be borne by such Assignor."
3. Article IX of the Security Agreement is hereby amended by inserting the following new definition in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunder.alphabetical order:
Appears in 1 contract
Concentration Account. Each Control Agreement with respect On or prior to a Controlled Deposit Account shall require that, during a Dominion Trigger Periodthe Closing Date, the Controlled Account Bank transfer all cash receipts Collection Agent, for the benefit of the Beneficiaries, shall establish and other collections by ACH maintain or wire transfer no less frequently than daily cause to be established and maintained in the name of the Agent with Bankers Trust Company a segregated trust account (and whether or not there are then any outstanding Obligations) to such account being the concentration account maintained by the Administrative Agent at BMO (the “"Concentration Account”" and such institution holding such account being the "Concentration Account Bank"), and if separate concentration accounts such account bearing a designation clearly indicating 139 that the funds deposited therein are maintained at held for the direction benefit of the Administrative Beneficiaries. The Agent for Dollars shall possess all right, title and another for Canadian Dollars, then such receipts interest in and collections of same currency shall be directed into to all funds from time to time on deposit in the corresponding Concentration Account for such currency (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required to be automatically swept into the Concentration Accountall proceeds thereof. The Concentration Account shall at all times be under the sole dominion and control of the Administrative AgentAgent for the benefit of the Beneficiaries, and neither the Seller, nor any Person claiming by, through or under the Seller, shall have any right, title or interest in, or any right to withdraw any amount from, the Concentration Account. The Loan Parties hereby acknowledge and agree Except as expressly provided in this Agreement, the Collection Agent agrees that (i) the Loan Parties it shall have no right of withdrawal set-off or banker's lien against, and no right to otherwise deduct from, any funds held in the Concentration Account for any amount owed to it by any Beneficiary. The Collection Agent shall cause Collections to be deposited into the Concentration Account on each Business Day as promptly as is reasonably practicable after receipt in a Lock Box Account, and in any event no later than the day on which such Collections become available funds in such Lock Box Account. The Seller will require Maxtor and the Selling Affiliates, if any, to deposit any Collections received by it into a Lock Box Account within two Business Days following the Business Day on which such Collections are so received. Notwithstanding the foregoing, if and to the extent that funds that are not Collections are deposited into the Concentration Account, the Collection Agent may direct the Trustee in writing to withdraw such funds from the Concentration Account and deposit them in the Seller's Account. The Agent hereby authorizes the Trustee to make withdrawals and payments from the Concentration Account, and to invest the funds in the Concentration Account, in accordance with the provisions of this Agreement. If, at any time, the institution holding the Concentration Account ceases to be an Eligible Institution, the Collection Agent, upon obtaining actual knowledge thereof, shall, within 15 Business Days (i) establish a new Concentration Account meeting the conditions specified above with an Eligible Institution, (ii) transfer any cash and/or any investments held in the old Concentration Account or with respect thereto to such new Concentration Account and (iii) in the case of any new Concentration Account, deliver to all Lock Box Banks new Lock Box Agreements (with copies thereof to the Trustee) referring to such new Concentration Account, and from the date such new Concentration Account is established, it shall be the "Concentration Account". Pursuant to the authority granted to the Collection Agent in Section 6.02, the Collection Agent shall have the power to instruct the Trustee to make withdrawals and payments from the Concentration Account for the purposes of carrying out the Collection Agent's or the Trustee's duties specified in this Agreement. Funds on deposit in the Concentration Account, shall, at the written direction of the Collection Agent, be invested by the Trustee or the Eligible Institution maintaining such accounts in Available Investments as instructed by the Collection Agent in writing (which may be a standing instruction). All such Available Investments shall be held by the Trustee or the Eligible Institution maintaining such accounts for the benefit of the Beneficiaries. Such funds shall be invested in Available Investments that will mature so that funds will be available on or before the close of business on the Business Day next preceding the following Settlement Date in amounts sufficient for the Trustee to make each distribution required under this Agreement on the next Settlement Date. All interest and other investment earnings (net of losses and investment expenses) received on funds on deposit in the Concentration Account Account, to the extent 140 such investment income is not needed to pay the Beneficiaries on such Settlement Date, shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in added to the Concentration Account shall be applied as provided in Section 4.04(c) below. If, notwithstanding the provisions of this Section 4.04, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds), the Concentration Account, or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent. Notwithstanding the foregoing, except as expressly provided in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during a Dominion Trigger Period, shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, the Company shall use and apply the Bonded AR Proceeds allocated in accordance with Section 2.06. The Trustee is hereby authorized, unless otherwise directed in writing by the General Indemnity Agreement. If during Collection Agent, to effect transactions in Available Investments through a Dominion Trigger Period, the final completion capital markets affiliate of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation of this paragraph, in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunderTrustee.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Maxtor Corp)
Concentration Account. Each Control Agreement (a) The Grantor has established or caused to be established with respect to a Controlled Deposit the Concentration Bank the Concentration Account shall require that, during a Dominion Trigger Period, the Controlled into which all Collections deposited into each Lockbox Account Bank transfer all cash receipts will be transferred and other collections into which Collections will be deposited by ACH or wire transfer no less frequently than daily directly from Persons from time to time.
(and whether or not there are then any outstanding Obligationsb) The Grantor has heretofore delivered to the concentration account maintained by Collateral Agent a fully executed letter agreement in the Administrative Agent at BMO form of Annex B (the “"Concentration Account”), and if separate concentration accounts are maintained at the direction of the Administrative Agent for Dollars and another for Canadian Dollars, then such receipts and collections of same currency shall be directed into the corresponding Concentration Account for such currency (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunder), provided that during a Dominion Trigger Period, any Bonded AR Proceeds held in a Controlled Deposit Account shall not be required to be automatically swept into the Concentration Account. The Concentration Account shall at all times be under the sole dominion and control of the Administrative Agent. The Loan Parties hereby acknowledge and agree that (iBank Letter") the Loan Parties have no right of withdrawal from the Concentration AccountBank.
(c) The Grantor shall instruct, or cause the Servicer to instruct, the Concentration Bank to transfer with the Requisite Frequency (iiin same day funds) the all available funds on deposit in the Concentration Account on such day (including all funds transferred from any Lockbox Account pursuant to clause (a) of Section 6 on such day) to the Collection Deposit Account along with any other evidences of payment on deposit therein; provided, however, that during any Amortization Period such funds and other evidences of payment shall be transferred at all such times be collateral security for all to the Collection Account "B".
(d) In the event the Grantor (with the consent of the Obligations Collateral Agent, such consent not to be unreasonably withheld) or the Concentration Bank shall, after the date hereof, terminate the Concentration Bank Letter for any reason, or if in the event (i) an Amortization Event or Potential Amortization Event shall have occurred and be continuing or (ii) there has been a failure by the Concentration Bank to perform its obligations hereunder and such failure could adversely affect the Collateral Agent's interest in any Account Collateral or the Collateral Agent's rights, or ability to exercise any remedies, under this Security Agreement or any other Transaction Document, if the Collateral Agent shall demand such termination, the Grantor agrees to notify (and, if the grantor fails to so notify, the Grantor irrevocably grants the Collateral Agent the authority to notify) all Persons that were depositing Collections into such terminated Concentration Account or Concentration Bank to make all future deposits directly to the Collection Deposit Account or any other account designated by the Collateral Agent.
(e) The Grantor represents, warrants, covenants and agrees that (i) the Collateral Agent is authorized to receive mail delivered to the Concentration Bank with respect to the Concentration Account and (iiiii) a form of standing delivery order will be filed within 30 days of the Effective Date by the Grantor with the United States Postal Service authorizing the Collateral Agent to receive mail delivered to the Concentration Bank with respect to the Concentration Account.
(f) The Collateral Agent shall have sole and exclusive dominion over and control of the Concentration Account and the Grantor and the Servicer shall not have any dominion over or control of the Concentration Account, other than the right to authorize transfers to the Collection Deposit Account or the Collection Account "B" as set forth herein and pursuant to the terms of this Agreement and the applicable Lockbox Letter Agreements.
(g) The Grantor agrees that the Collateral Agent shall have the unconditional right at any time, whether or not an Amortization Event or Potential Amortization Event has occurred, (i) to instruct the Concentration Bank to transfer, in same day funds, all available funds on deposit in the Concentration Account shall be applied to any Collection Account or (ii) to instruct the Concentration Bank to thereafter transfer automatically at least as provided in Section 4.04(c) below. If, notwithstanding the provisions of this Section 4.04, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party often as once each day that is a Business Day for the Administrative AgentConcentration Bank and the Collection Bank, shall not be commingled with any of such Loan Party’s other funds or deposited and in any account event at the open of such Loan Party and shall, not later than business on the Business Day after receipt thereof, be deposited directly following each such day of transfer or deposit into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds), the Concentration Account, or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent. Notwithstanding the foregoingsame day funds, except as expressly provided all available funds on deposit in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at to any time and during a Dominion Trigger Period, shall Collection Account along with any evidences of payment on deposit therein. Any such instructions may be deposited directly into a segregated Controlled Deposit Account (and in any event, not a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicable, an Excluded Deposit Account. At all times, revoked only upon the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion written direction of the project related to such Bonded Job Site (so long as no default has occurred at the time of such final completion with respect to the Bonding Obligations related to such Bonded Job Site) occurs, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into (or if already held in such segregated Controlled Deposit Account, promptly transferred to) the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Collateral Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited into, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Account. If any Bonded AR Proceeds are deposited or otherwise transferred into the Concentration Account or any Qualified Account in violation of this paragraph, in no event shall the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunder.
Appears in 1 contract
Samples: Security Agreement (Burlington Industries Inc /De/)
Concentration Account. Each Control Agreement with respect (a) TLI maintains, and hereby agrees to a Controlled Deposit Account shall require that, during a Dominion Trigger Periodcontinue to maintain in its individual capacity and as the manager of Containers on behalf of TAL A, the Controlled Account Bank transfer all cash receipts and other collections by ACH bank deposit accounts identified on Exhibit A hereto as the “concentration account” (such account, or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the successor concentration account maintained created by the Administrative Agent at BMO (TLI in compliance with this Section 4.1, is referred to herein as the “Concentration Account”). Until otherwise instructed by the Indenture Trustee, and if separate concentration accounts are maintained at Fortis and/or the direction of the Administrative Agent for Dollars and another for Canadian Dollars, then such receipts and collections of same currency shall be directed into the corresponding Concentration Account for such currency Other Lenders (and for the avoidance of doubt, each such account shall constitute a Concentration Account hereunderor any trustee or agent thereof), provided that during a Dominion Trigger Periodin writing, any Bonded AR Proceeds held following the occurrence of an Actionable Default and in a Controlled Deposit Account shall not be required to be automatically swept into the Concentration Account. The Concentration Account shall at all times be under the sole dominion and control of the Administrative Agent. The accordance with an applicable Equipment Loan Parties hereby acknowledge and agree that Agreement or related Security Agreement, TLI will (i) continue to instruct all lessees of the Loan Parties have no right Containers or other collateral under a Lease to remit all rental and other payments arising under such Lease to one or more of withdrawal the bank deposit accounts used by TLI from time to time as “collection accounts” (collectively, the Concentration Account“Collection Accounts”), and (ii) the cause all funds on deposit in the Concentration Account shall at all times be collateral security for all Collection Accounts, to the extent of the Obligations and type referenced in clause (iiii) the funds on deposit in above, to be “swept” into the Concentration Account on a periodic basis. The Collection Accounts that are in use by TLI on the date hereof are identified on Exhibit B. Each of the Indenture Trustee, Fortis and/or the Other Lenders further agree, for the exclusive benefit of each other, and without any duties or obligations to TLI or TAL A that, if an Actionable Default has occurred, (i) no such party shall exercise any rights to instruct lessees to remit rental and other payments under any Leases without prior notice to each other Equipment Lender and (ii) absent the consent of all Equipment Lenders, no such Equipment Lender shall instruct lessees under a Lease Agreement that relates to one or more Securitized Containers, Fortis Containers or Other Lenders’ Containers to remit such payments to any account other than the Collection Account; provided that nothing herein shall restrict the rights of a successor manager under the Management Agreement to give any such notices so long as such manager has agreed to be applied as provided in Section 4.04(c) below. If, notwithstanding bound by the provisions of Sections 4 and 5 of this Section 4.04Agreement insofar as such provisions apply to TLI. Nothing contained in clause (ii) above shall restrict any of the Indenture Trustee, Fortis and/or any Loan Party receives Other Lender from instructing any Lessee to return to a specified depot or otherwise has dominion and control other location any Securitized Container, Fortis Container or Other Lenders’ Container, respectively, upon the expiration or earlier termination of any such proceeds or collections described above, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, related Lease.
(b) TLI shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited directly into a Controlled Deposit Account, or during a Dominion Trigger Period (except with respect to Bonded AR Proceeds), change the Concentration Account, either to a different deposit account at Citibank or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent. Notwithstanding the foregoingto an account at another bank (which new Concentration Account, except as expressly provided in this paragraph, any proceeds or collections of Accounts related to Bonded Job Sites that constitute trust funds or funds in which another Person has a Lien (having priority over the Administrative Agent’s Lien) with respect thereto (collectively, the “Bonded AR Proceeds”) shall not be deposited into the Concentration Account at any time and during a Dominion Trigger Period, shall be deposited directly into a segregated Controlled Deposit Account (and in any event, not shall be maintained at a Qualified Account) and not commingled with other non-Bonded AR Proceeds or if applicablebank in the United States, an Excluded Deposit Account. At unless all times, the Company shall use and apply the Bonded AR Proceeds in accordance with the General Indemnity Agreement. If during a Dominion Trigger Period, the final completion of the project related Equipment Lenders agree to such Bonded Job Site a different location), unless TLI shall, as soon as practicable but in any event within 30 Business Days, have given written notice to each of the Equipment Lenders.
(so long c) Except as no default has occurred at the time provided in this Agreement, TLI (as an equipment owner and in its capacity as a manager of such final completion with respect to the Bonding Obligations related to such Bonded Job SiteContainers owned by TAL A) occursagrees that it shall not transfer ownership to, then the Bonded AR Proceeds for such Bonded Job Site need not be deposited intoin whole or part, or continue create, incur, assume or suffer to be held in, a segregated Controlled Deposit Account and instead, shall be directly deposited into exist any Lien (or if already held other than Permitted Liens) in such segregated Controlled Deposit Account, promptly transferred to) favor of any party upon the Concentration Account. If an amendment is duly entered into with respect to the General Indemnity Agreement at , any time after the Closing Date but before the occurrence of a Dominion Trigger Period (and such amendment is in form and scope acceptable to the Administrative Agent), then all times before the point of time at which such amendment requires any Bonded AR Proceeds to be held in trust, such Bonded AR Proceeds covered by such amendment need not be deposited intoCollection Account, or continue to be held in, a segregated Controlled Deposit Account and may be deposited into another Controlled Deposit Account, unless a Dominion Trigger Period is in effect, in which case they shall be deposited into the Concentration Accountany funds therein or proceeds thereof. If Upon receiving notice of any Bonded AR Proceeds are deposited or otherwise transferred into Lien (other than Permitted Liens) upon the Concentration Account or any Qualified Collection Account other than as expressly provided for or permitted herein, TLI shall, as soon as possible following notice to such effect from any Equipment Lender, cease depositing or causing to be deposited funds constituting Securitized Collateral, Fortis Collateral or Other Lenders’ Collateral into such account, and will thereafter deposit or cause to be deposited such funds into such other account as is approved in violation writing by each of this paragraphthe Equipment Lenders, in no event shall until such time as such Lien (other than Permitted Liens) is released or removed on terms reasonably satisfactory to each of the Administrative Agent be required to apply such Bonded AR Proceeds against the outstanding Obligations nor shall such Bonded AR Proceeds otherwise entitle any Borrower to any additional Availability hereunderparties hereto.
Appears in 1 contract
Samples: Intercreditor Agreement (TAL International Group, Inc.)
