Control Agreements. (a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account. (b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account.
Appears in 4 contracts
Samples: Security Agreement (Intercept Pharmaceuticals, Inc.), Exchange Agreement (Intercept Pharmaceuticals, Inc.), Exchange Agreement (Intercept Pharmaceuticals, Inc.)
Control Agreements. (a) As (i) Enter into the Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the date hereofGuarantee and Collateral Agreement, no Pledgor has any Deposit Accounts(ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, Securities Accounts or Commodities Accounts other than (iii) enter into the accounts listed on Schedule 6Collateral Access Agreements required to be provided pursuant to Section 5.13 of the Guarantee and Collateral Agreement, (iii) open the Collection Account with the Administrative Agent and (iv) deliver to the Administrative Agent executed DDA Notifications (as defined in the Guarantee and Collateral Agreement) required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement. For all Deposit Accounts and Securities Accounts maintained In connection with the foregoing, the Borrower shall, if requested by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Administrative Agent, pursuant promptly deliver to which the applicable institution shall agree Administrative Agent a favorable written opinion (addressed to comply with the Collateral Agent’s instructions with respect Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect Administrative Agent and covering customary matters relating to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (control and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Accountaccess agreements.
(b) Within 90 days The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts (1other than (i) any Person becoming a Pledgor each deposit account, the funds in which are used, in the ordinary course of business, solely for the payment of salaries and wages, workers’ compensation, pension benefits and similar expenses or taxes related thereto, (ii) any Pledgor acquiring or opening any each deposit account used, in the ordinary course of business, solely for daily accounts payable and that has an ending daily balance of zero and (iii) each Deposit Account used in the ordinary course of business for local store accounts (which shall be governed by Section 6.4 of the Guarantee and Collateral Agreement)) not subject to Deposit Account Control Agreements or Securities Account other appropriate control agreements in favor of the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent at each time when the Borrower delivers Borrowing Base reports pursuant to Section 6.2(g), and if such aggregate balance under clause (other than the Excluded Accounts, collectivelyii) above shall at any time of determination exceed $1,000,000, the “New Blocked Accounts”)Borrower shall promptly eliminate such excess from such accounts or shall within 30 days enter, or cause the applicable Pledgor Loan Parties to enter, into one or more Deposit Account Control Agreements or other appropriate control agreements in favor of the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent so that there shall ensure not thereafter be any such excess; provided, however, that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within Borrower shall have 90 days after the Closing Date (or such later date of such Person becoming a Pledgor or as the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution Administrative Agent shall agree in its Permitted Discretion) to comply with the Collateral Agent’s instructions with respect to disposition of funds in obtain such Blocked Deposit Account without further consent by such Pledgor, Control Agreements or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has other appropriate control (within the meaning of the UCC) with respect to such accountagreements.
Appears in 4 contracts
Samples: Credit Agreement (NBC Acquisition Corp), Credit Agreement (Nebraska Book Co), Credit Agreement (Nebraska Book Co)
Control Agreements. (aWithin the time periods set forth in Sections 8.18 and 8.19(a) As of the date hereofRevolving Credit Agreement and Sections 8.18 and 8.20(a) of the Term Loan Agreement, no Pledgor has any for each Deposit AccountsAccount, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts Account and Securities Accounts maintained by the Issuer as of the date hereof Commodity Account (other than Excluded Accounts) that such Grantor at any time maintains, collectivelysuch Grantor will, the “Existing Blocked Accounts”)at all times, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account pursuant to enter into a Control agreement with Agreement in form and substance satisfactory to the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining depository bank that maintains such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, the securities intermediary that maintains such Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure commodities intermediary that the Collateral Agent has Control with respect to any New Blocked Account of maintains such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Commodity Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply at any time (a) with entitlement orders from the Collateral Agent to such securities intermediary with regard to a Securities Account, (b) with instructions from the Collateral Agent to such depository bank, directing the disposition of funds from time to time in such Deposit Account, and (c) with directions of the Collateral Agent to such commodity intermediary for the application of value on account of commodity contracts carried in such Commodity Account, in each case without further consent of such Grantor and sufficient to grant the Collateral Agent with “control” within the meaning of Section 8-106 of the UCC, Section 9-104 of the UCC and Section 9-106 of the UCC, as applicable, and Grantor shall take such other action as the Collateral Agent may reasonably request or approve in order to perfect the Collateral Agent’s instructions with respect to disposition (on behalf of funds the Secured Parties) security interest in such Blocked Account without further consent by such PledgorDeposit Account, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Commodity Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii)including by control as aforesaid; provided that, such Grantor shall not cause or permit any Excluded Account to cease to constitute an “Excluded Account” (other than as a result of the extent it closing of such Excluded Account) unless such Deposit Account, Securities Account or Commodity Account, as applicable, is not practicable for subject to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days Agreement in favor of opening such account, such Pledgor shall ensure that the Collateral Agent has control in form and substance satisfactory to the Collateral Agent. Notwithstanding the foregoing or the terms of any Control Agreement, unless an Event of Default is continuing the Collateral Agent will not enforce the terms of any Control Agreement in order to take possession of, or prevent or limit the ability of any Grantor to direct the disposition of, the funds and other assets held in any Deposit Account, Securities Account or Commodity Account. The Borrower agrees to provide to the Collateral Agent each notice that the Borrower provides to the Revolving Administrative Agent (within at the meaning time such notice is provided to the Revolving Administrative Agent) regarding the opening of the UCC) with respect to such accounta Deposit Account, Securities Account or Commodity Account (other than an Excluded Account).
Appears in 2 contracts
Samples: Guaranty and Collateral Agreement, Guaranty and Collateral Agreement (Ultra Petroleum Corp)
Control Agreements. (a) As If a Cash Dominion Period commences, the Loan Parties, promptly upon the request of the date hereofAdministrative Agent, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than shall deliver to the accounts listed on Schedule 6. For Administrative Agent a schedule of all Deposit Accounts and Securities Accounts that are maintained by the Issuer as of the date hereof (other than Excluded AccountsLoan Parties, collectivelywhich Schedule shall include, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition each depository, (i) the name and address of funds in such Existing Blocked Account without further consent by Issuer or agree to comply depository, (ii) the account number(s) maintained with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuerdepository, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to and (iii) a contact person at such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Accountdepository.
(b) Within 90 days of after the Effective Date (1or such later date as the Administrative Agent may reasonably agree in its sole discretion), each Loan Party shall have entered into a Control Agreement, in form and substance reasonably satisfactory to the Administrative Agent, with the bank which maintains Parent Borrower’s main concentration account (the “Concentration Account”) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any and with each bank with which such Loan Party maintains each other Deposit Account or Securities Account described on Schedule 5.16 (the Concentration Account and each other account subject to a Control Agreement, a “Control Account”) and shall at all times thereafter cause all such accounts to be maintained as Control Accounts. At all times during the continuance of a Cash Dominion Period, (i) unless the Administrative Agent has given contrary instructions to the applicable bank or financial institution pursuant to the applicable Control Agreement, the Loan Parties shall cause all proceeds of Collateral received in accounts of the stores that are not Control Accounts, and all other amounts otherwise constituting or received in respect of proceeds of Collateral in Control Accounts other than the Concentration Account to be transferred to the Concentration Account within not more than 3 Business Days of receipt in such Control Accounts and (ii) the Loan Parties shall cause all proceeds of Collateral received in accounts of the stores that are not Control Accounts, and all other amounts otherwise constituting or received in respect of any Collateral that are received in accounts that are not Control Accounts, to be transferred from such non-controlled accounts to Control Accounts as soon as practicable following receipt; provided that this sentence shall not apply to any Excluded Accounts. Promptly following the commencement of any Cash Dominion Period, each Loan Party shall give notice satisfactory to the Administrative Agent to each credit card processor that processes its credit card receivables to require it to make daily transfers of the payments due from such processor to a Control Account specified by the Administrative Agent.
(c) Subject to the time periods specified in Section 5.16(b), during the continuance of a Cash Dominion Period, unless the Administrative Agent has given contrary instructions to the applicable bank or financial institution pursuant to the applicable Control Agreement, the Loan Parties shall cause the wire transfer on each Business Day (whether or not there are at the time outstanding Loans) of all available cash receipts to the Concentration Account, from:
(i) the sale of Inventory;
(ii) all proceeds of collections of Accounts (including in respect of credit card receivables, whether or not constituting Eligible Credit Card Receivables); and
(iii) each Control Account (including all cash deposited therein from each Deposit Account and each Securities Account).
(d) If, at any time during the continuance of a Cash Dominion Period, any cash or cash equivalents owned by any Loan Party (other than the amounts contained in Excluded Accounts) are deposited to any account, collectivelyor held or invested in any manner, the “New Blocked Accounts”)otherwise than in a Control Account, the applicable Pledgor Loan Party shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining close such account, within 90 days after as soon as practicable following the occurrence of a Cash Dominion Period, and have all funds therein and all future deposits thereto transferred to a Control Account. If on any date (i) Availability shall be less than 25% of such Person becoming a Pledgor the Line Cap or (ii) the opening Revolving Credit Exposure (not including any LC Exposure) shall exceed 50% of such New Blocked Accountthe Line Cap, as applicable, to then (A) each Loan Party shall promptly enter into a control agreement with an amendment to the Collateral Agent, Agreement satisfactory to the Administrative Agent pursuant to which such Loan Party shall, for the benefit of the Secured Parties gxxxx x Xxxx on all its Securities Accounts which prior to such amendment shall have been excluded from the Lien of the Collateral Agreement and (B) the Loan Parties shall within 30 days after such date (or such later date as the Administrative Agent may reasonably agree in its sole discretion) enter into Control Agreements, in form and substance reasonably satisfactory to the Administrative Agent, with the applicable institution securities intermediaries in respect of such Securities Accounts as shall agree be required so that after giving effect thereto all cash or cash equivalents owned by the Loan Parties (other than amounts contained in Excluded Accounts) shall be held in Control Accounts and shall at all times thereafter cause all such accounts to comply be maintained as Control Accounts.
(e) The Loan Parties may close Deposit Accounts, Securities Accounts or Control Accounts and/or open new Deposit Accounts, Securities Accounts or Control Accounts, subject to the execution and delivery to the Administrative Agent of appropriate Control Agreements consistent with the provisions of this Section 5.16 and otherwise reasonably satisfactory to the Administrative Agent. The Loan Parties shall furnish the Administrative Agent with prior written notice of their intention to open or close a Control Account and the Administrative Agent shall promptly notify the Parent Borrower as to whether the Administrative Agent shall require a Control Agreement with the Person with whom such account will be maintained.
(f) Each of Holdings and the Parent Borrower hereby acknowledges and agrees on behalf of itself and each other Loan Party that (i) the funds on deposit in the Concentration Account shall at all times continue to be collateral security for all of the Obligations and (ii) during a Cash Dominion Period, such Loan Party shall have no right of withdrawal from the Concentration Account and the funds on deposit in the Concentration Account shall be applied as provided in this Agreement and the Collateral Agreement. In the event that any Loan Party receives or otherwise has dominion and control of any such proceeds or collections in contravention of the provisions of this Section 5.16, 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 instructions other funds or deposited in any account of such Loan Party and shall promptly be deposited into the Concentration Account or dealt with respect to disposition of funds in such Blocked other fashion as such Loan Party may be instructed by the Administrative Agent.
(g) Any amounts received in the Concentration Account without further consent by such Pledgor, at any time when all of the Obligations then due have been and remain fully repaid (and all deposits required to be made pursuant to Section 2.09(f) or agree 2.17(f) shall have been made) shall be remitted to comply the operating account of the Parent Borrower maintained with the Collateral Administrative Agent’s Entitlement Orders with respect to such Securities .
(h) The Administrative Agent shall not give any notice of exclusive control or similar notice for any Control Account without further consent by such Pledgor, as applicableunless a Cash Dominion Period has occurred and is continuing. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor The Administrative Agent shall promptly (and but in any event within 90 days after two Business Days) furnish written notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into each Person with whom a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it Account is not practicable for to cause the institution maintaining such account to enter into maintained of any termination of a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountCash Dominion Period.
Appears in 2 contracts
Samples: Credit Agreement (J C Penney Co Inc), Credit Agreement (J C Penney Co Inc)
Control Agreements. (aWithin the time period set forth in Section 11.2(c) As of the date hereofIndenture, no Pledgor has any for each Deposit AccountsAccount, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts Account and Securities Accounts maintained by the Issuer as of the date hereof Commodity Account (other than Excluded Accounts) that such Grantor at any time maintains, collectivelysuch Grantor will cause (or, at any time prior to the Discharge of Senior Obligations, while and to the extent an agreement granting “Existing Blocked Accounts”), control” to the Issuer shall ensure that the First Lien Collateral Agent has control (within the meaning of the UCC)over any such Deposit Account, within 90 days after the date of this AgreementSecurities Account or Commodity Account is in effect, by causing the institution maintaining each such Existing Blocked Account will make commercially reasonable efforts to enter into cause) at all times, pursuant to a Control agreement with Agreement in form satisfactory to the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in depository bank that maintains such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, the securities intermediary that maintains such Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure commodities intermediary that the Collateral Agent has Control with respect to any New Blocked Account of maintains such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Commodity Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply at any time (a) with entitlement orders from the Collateral Agent to such securities intermediary with regard to a Securities Account, (b) with instructions from the Collateral Agent to such depository bank, directing the disposition of funds from time to time in such Deposit Account, and (c) with directions of the Collateral Agent to such commodity intermediary for the application of value on account of commodity contracts carried in such Commodity Account, in each case without further consent of such Grantor and sufficient to grant the Collateral Agent with “control” within the meaning of Section 8-106 of the UCC, Section 9-104 of the UCC and Section 9-106 of the UCC, as applicable, and Grantor shall take such other action as is necessary, or as the Collateral Agent may reasonably request, in order to perfect the Collateral Agent’s instructions with respect to disposition (on behalf of funds the Secured Parties) security interest in such Blocked Account without further consent by such PledgorDeposit Account, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Commodity Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii)including by control as aforesaid; provided that, such Grantor shall not cause or permit any Excluded Account to cease to constitute an “Excluded Account” (other than as a result of the extent it closing of such Excluded Account) unless such Deposit Account, Securities Account or Commodity Account, as applicable, is not practicable for subject to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days Agreement in favor of opening such account, such Pledgor shall ensure that the Collateral Agent has control in form satisfactory to the Collateral Agent. Notwithstanding the foregoing or the terms of any Control Agreement, unless an Event of Default is continuing the Collateral Agent will not enforce the terms of any Control Agreement in order to take possession of, or prevent or limit the ability of any Grantor to direct the disposition of, the funds and other assets held in any Deposit Account, Securities Account or Commodity Account. The Company agrees to provide to the Collateral Agent each notice that the Company provides to the First Lien Collateral Agent (within at the meaning time such notice is provided to the Revolving Administrative Agent) regarding the opening of a Deposit Account, Securities Account or Commodity Account (other than an Excluded Account). Notwithstanding the foregoing, it is understood and agreed that, if at any time the Senior Obligations are outstanding, (i) if a Control Agreement for a Deposit Account that would otherwise be subject to this Section 6.9 is reasonably acceptable to the First Lien Collateral Agent then it shall be deemed to be acceptable the Collateral Agent for purposes of complying with this Section 6.9 and (ii) if the Grantors shall have delivered a Control Agreement to the First Lien Collateral Agent for a Deposit Account that would otherwise be subject to this Section 6.9, the form of the UCCControl Agreement (subject to customary modification to reflect the Applicable Agent’s interest in such Deposit Accounts) delivered to the First Lien Collateral Agent shall be deemed acceptable to the Collateral Agent for purposes of complying with respect this Section 6.9; provided, however, that no Control Agreement shall be deemed to such accountbe acceptable to the Collateral Agent if it requires the Collateral Agent in its individual capacity to indemnify the commodity intermediary, banking institution or securities intermediary (as applicable).
Appears in 2 contracts
Samples: Second Lien Guaranty and Collateral Agreement (Ultra Petroleum Corp), Exchange Agreement (Ultra Petroleum Corp)
Control Agreements. (a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Commodity Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts, Securities Accounts and Securities Commodity Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts), collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), ) within 90 60 days after the date of this Agreement, Agreement with respect to any such Existing Blocked Account of the Issuer by causing the institution maintaining each such Existing Blocked Account to enter into a Control control agreement with the Collateral AgentAgent (“Control Agreement”), pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by the Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, instructions or agree to comply with the Collateral Agent’s Entitlement Orders entitlement orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement Agreement in response to reasonable comments from the Collateral AgentAgent (it being agreed by all parties that any comments related to ensuring that the Collateral Agent is not exposed to individual liability are reasonable), then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement Agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement Agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Commodity Account.
(b) Within 90 days of (1i) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account, Securities Account or Securities Commodity Account (other than the Excluded Accounts) (any accounts under the foregoing clauses (i) and(ii), collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement Control Agreement with the Collateral Agent, Agent pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, Pledgor or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement Agreement in response to reasonable comments from the Collateral AgentAgent (it being agreed by all parties that any comments related to ensuring that the Collateral Agent is not exposed to individual liability are reasonable), then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable appliable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement Agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for such Pledgor to cause the institution maintaining such account to enter into a Control agreement Agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new New Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account.
Appears in 2 contracts
Samples: Super Priority Security Agreement (Accelerate Diagnostics, Inc), Security Agreement (Accelerate Diagnostics, Inc)
Control Agreements. Borrowers agree that they will not, and will not permit their Subsidiaries to, transfer assets out of any of their Cash Management Accounts or Securities Accounts; provided, however, that so long as no Event of Default has occurred and is continuing or would result therefrom, Borrowers and their Subsidiaries may use such assets (and the proceeds thereof) to the extent not prohibited by this Agreement or the other Loan Documents and, if the transfer is to another bank or securities intermediary, so long as the applicable Borrower or Subsidiary, Lender, and the substitute bank or securities intermediary have entered into a Control Agreement. Notwithstanding the foregoing, the parties understand and agree that as of the Closing Date: (a) As Borrowers have numerous local bank accounts which are not Cash Management Accounts (each, a "Local Bank Account") into which deposits are made on a daily basis in connection with the Bickford's Business and from which funds are directed to be transferrxx xx x Xxsh Management Account, (b) the Local Bank Accounts are not required to be subject to a Control Agreement, unless requested by Lender, (c) the transfer of funds from the Local Bank Accounts to a Cash Management Account shall not constitute a Default or an Event of Default under this Agreement, and (d) the failure of a Local Bank Account to be subject to a Control Agreement shall not constitute a Default or an Event of Default under this Agreement until forty-five (45) days after a written request by Lender that such Local Bank Account become subject to a Control Agreement. Borrowers agree that they will and will cause their Subsidiaries to take any or all reasonable steps that Lender requests in order for Lender to obtain control in accordance with Sections 9-104, 9-105, 9-106, and 9-107 of the date hereofCode with respect to any of its or their Securities Accounts, no Pledgor has any Deposit Accounts, electronic chattel paper, Investment Property, and letter-of-credit rights. No arrangement contemplated hereby or by any Control Agreement in respect of any Securities Accounts or Commodities Accounts other than Investment Property shall be modified by Borrowers without the accounts listed on Schedule 6prior written consent of Lender. For all Deposit Accounts Upon the occurrence and Securities Accounts maintained by during the Issuer as continuance of the date hereof (other than Excluded Accountsa Default or Event of Default, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account Lender may notify any bank or securities intermediary to enter into a Control agreement with the Collateral Agent, pursuant to which liquidate the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than or any related Investment Property maintained or held thereby and remit the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, proceeds thereof to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountLender's Account.
Appears in 1 contract
Control Agreements. (a) As Borrower agrees that it will not, and will not permit its Subsidiaries to, transfer assets out of any of their Deposit Accounts (other than as specified in Section 2.7 with respect to Cash Management Accounts) or Securities Accounts; provided, however, that so long as no Event of Default has occurred and is continuing or would result therefrom, Borrower and its Subsidiaries may use such assets (and the date proceeds thereof) to the extent not prohibited by this Agreement or the other Loan Documents and, if the transfer is to another bank or securities intermediary, so long as Borrower (or its Subsidiary, as applicable), Agent, and the substitute bank or securities intermediary have entered into a Control Agreement (subject to Section 7.12 hereof, no Pledgor has ). No arrangement contemplated hereby or by any Deposit Accounts, Control Agreement in respect of any Securities Accounts or Commodities Accounts other than Investment Property shall be modified by Borrower without the accounts listed on Schedule 6prior written consent of Agent. For all Upon the occurrence and during the continuance of an Event of Default, Agent may notify any bank or securities intermediary to liquidate the applicable Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof Account (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, including pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC2.7(c) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required Cash Management Accounts) or Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to subordinate its security interest in a Deposit Account, Securities Account, the Agent’s Account or Commodities Accountas otherwise directed by Agent.
(b) Within 90 days of Borrower agrees that, subject to Section 2.7 (1with respect to Cash Management Accounts) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any and Section 7.12 with respect to all other Deposit Account or Accounts and Securities Account (other than the Excluded Accounts, collectivelyit will and will cause its Subsidiaries to take any or all reasonable steps that Agent requests in order for Agent to obtain control in accordance with Sections 9-104, 9-105, 9-106, and 9-107 of the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control Code with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account(i) its or their Securities Accounts, within 90 days after the date of such Person becoming Deposit Accounts, electronic chattel paper, Investment Property, and (ii) only during a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral AgentTriggering Period, pursuant to which the applicable institution shall agree to comply with the Collateral any such reasonable (in Agent’s instructions Permitted Discretion) request, its or their letter-of-credit rights; provided, however, that Borrower shall not be so required to cause Agent to obtain such control with respect to disposition of funds in such Blocked the Special Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such and Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountInvestments.
Appears in 1 contract
Control Agreements. (ai) As Subject to Section 4.19 of the date hereofIndenture, no Pledgor has any each Grantor shall obtain and keep effective a Control Agreement from each bank maintaining a Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof Account for such Grantor (other than Excluded AccountsAssets) including such bank and Deposit Accounts set forth on Schedule 6(k);
(ii) Subject to Section 4.19 of the Indenture, collectivelyeach Grantor shall obtain and keep effective a Control Agreement, from each issuer of uncertificated securities, securities intermediary, or commodities intermediary issuing or holding any financial assets or commodities (other than Excluded Assets) to or for any Grantor;
(iii) Subject to Section 4.19 of the Indenture and except to the extent otherwise excused by the Second Lien Documents, each Grantor shall obtain and keep effective a Control Agreement with respect to all of such Grantor’s investment property other than Excluded Assets;
(iv) Subject to the Intercreditor Agreement, each such Control Agreement shall provide, among other things, that upon notice from Control Agent (a “Existing Blocked AccountsControl Notice”), the Issuer shall ensure that the Collateral Agent has control bank, intermediary or other Person described in clauses (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to i)-(iii) above will comply with any instructions originated by Control Agent directing the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities applicable Account without further consent by the Issuer, as applicable, or agree applicable Grantor. Collateral Agent agrees not to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into issue a Control agreement in response Notice unless a Triggering Event has occurred and is continuing at the time such Control Notice is issued. Collateral Agent agrees to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into rescind a Control agreement in compliance with this Section 2.3(a); provided that, to Notice (the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i“Rescission”) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of if : (1) any Person becoming a Pledgor the Triggering Event has been cured or waived in writing in accordance with the terms of the Indenture, and (ii2) any Pledgor acquiring no additional Triggering Event has occurred and is continuing prior to the date of the Rescission or opening any Deposit Account is reasonably expected to occur on or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days immediately after the date of such the Rescission;
(v) So long as no Event of Default has occurred and is continuing, Grantors may close accounts or replace any bank, intermediary or other Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds described in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly clauses (i)-(iii) above and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(iiGrantors may amend Schedule 6(k); provided thathowever, in respect of such Deposit Accounts (other than Excluded Assets), as promptly as practicable after such closure or replacement, the applicable Grantor and such bank, intermediary or other Person shall have executed and delivered to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect a Control Agreement in form reasonably satisfactory to such accountCollateral Agent.
Appears in 1 contract
Samples: Security Agreement (Platinum Pressure Pumping, Inc.)
Control Agreements. (aSubject to Section 8.17(b) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Credit Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a each Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities and Commodity Account (other than De Minimis Accounts and the Excluded Accounts) that such Grantor at any time maintains, collectivelysuch Grantor will, at the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account time of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Deposit Account, Securities Account or Commodity Account (other than De Minimis Accounts and the Excluded Accounts) or at the time such Deposit Account, Securities Account or Commodity Account ceases to be a De Minimis Account or an Excluded Account, pursuant to a Control Agreement in form and substance reasonably satisfactory to the Administrative Agent, cause the depository bank that maintains such Deposit Account, securities intermediary that maintains such Securities Account, or commodities intermediary that maintains such Commodity Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply at any time with instructions from the Collateral Administrative Agent to such depository bank, securities intermediary or commodities intermediary directing the disposition of funds from time to time credited to such Deposit Account, Securities Account or Commodity Account, without further consent of such Grantor, or take such other action as the Administrative Agent may reasonably request in order to perfect the Administrative Agent’s instructions security interest in such Deposit Account, Securities Account or Commodity Account. Notwithstanding anything to the contrary in this Security Agreement, the Credit Agreement or any Control Agreement, unless an Event of Default has occurred and is continuing, the Administrative Agent agrees with respect each Grantor that the Administrative Agent shall not give any instructions, directions or Entitlement Orders, as applicable, directing the disposition of funds, Financial Assets or Commodity Contracts, as applicable, from time to time credited to or carried in any Deposit Account, Securities Account or Commodity Account subject, in each case, to a Control Agreement (other than a notice by the Administrative Agent that its activation of sole control has ceased and that such Grantor shall be entitled once again to control and direct the disposition of funds in such Blocked Account without further consent account until future notice by the Administrative Agent pursuant to the provision of such PledgorControl Agreement), and shall not withhold any withdrawal rights or agree to comply with the Collateral Agent’s Entitlement Orders dealing rights from such Grantor with respect to such Securities Account without further consent by such Pledgorany funds, Financial Assets or Commodity Contracts, as applicable. If , from time to time credited to or carried in any institution with which a New Blocked Deposit Account, Securities Account is maintained refuses toor Commodity Account subject, or does notin each case, enter into to a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountAgreement.
Appears in 1 contract
Samples: Credit Agreement (Energen Corp)
Control Agreements. (a) As Each of Holdings and the date hereofBorrower shall, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts and shall cause each other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof Credit Party to (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to i) enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions Agreements with respect to disposition each deposit account, securities account and commodities account maintained by Holdings, Borrower or any such Credit Party as of funds or after the Amendment and Restatement Date, (ii) deposit in a deposit account subject to a Control Agreement all cash received on each Business Day and (iii) not establish or maintain any deposit account, securities account or commodities account unless such deposit account, securities account or commodities account is subject to a Control Agreement as provided in Section 3.14, in each case, other than (A) any payroll account so long as such payroll account is a zero balance account, (B) any disbursement account so long as (I) such disbursement account is a zero balance account or (II) the cash and Cash Equivalents on deposit in such Existing Blocked Account without further consent by Issuer disbursement account shall not exceed $250,000, (C) cash and Cash Equivalents on deposit in or agree credited to comply with the Collateral balance of withholding tax and other fiduciary accounts and (D) cash and Cash Equivalents in an amount not to exceed $100,000 in the aggregate. Each such Control Agreement shall be in form and substance satisfactory to Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, The Borrower and each Guarantor shall enter into a Control agreement and maintain with one or more banks and pursuant to agreements in response form and substance reasonably satisfactory to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Accountlock box arrangements.
(b) Within 90 days Each of Holdings and Borrower shall, and shall cause each Credit Party, to (1i) provide each Account Debtor or other Person obligated to make a payment to any of them under any Account or General Intangible with an envelope addressed to the applicable Credit Party for such Account Debtor or other Person becoming to make such payment directly to a Pledgor lockbox account or other deposit account subject to a Control Agreement and (ii) deposit in a deposit account or securities account (as applicable) subject to a Control Agreement promptly (but in any Pledgor acquiring event within three (3) Business Days) upon receipt all Proceeds (as defined in the Code) of such Accounts and General Intangibles received by Holdings, Borrower or opening any Deposit Account such Credit Party from any other Person.
(c) Notwithstanding anything to the contrary in the foregoing clauses (a) or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”b), the applicable Pledgor it is understood and agreed that:
(i) Agent shall ensure that the Collateral Agent has Control with respect not deliver a notice of control or other similar notice to any New Blocked Account of such Pledgor by causing the institution maintaining such accountdepository institution, within 90 days after the date of such Person becoming a Pledgor securities intermediary or the opening of such New Blocked Accountcommodities intermediary, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution any Control Agreement unless (A) an Event of Default shall agree to comply with the Collateral Agent’s instructions with respect to disposition be continuing or (B) Borrowing Availability is less than $10,000,000; and
(ii) if an Event of funds in such Blocked Account without further consent by such Pledgor, Default shall be continuing or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account Borrowing Availability is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3less than $10,000,000, and, if practicablein each case, prior a control notice or similar notice has been given by Agent in accordance with the applicable Control Agreement and the immediately preceding clause (i), amounts deposited in or credited to such transferdeposit accounts, cause the institution maintaining such account securities accounts or commodities accounts subject to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, Agreements or credited to the extent it is not practicable for to cause the institution maintaining such lock-box account to enter into will be transferred on a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply daily basis to the new Blocked Concentration Account being opened and within 90 days of opening such account, such Pledgor shall ensure that be available to the Collateral Agent has control (within the meaning of the UCC) with respect to such accountapplicable Credit Party.
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Control Agreements. (a) As Each of Holdings and Parent Borrower shall, and shall cause each other Credit Party to (i) enter into Control Agreements with respect to each deposit account, securities account and commodities account maintained by Holdings, Parent Borrower or any such Credit Party as of or after the Closing Date, (ii) deposit in a deposit account subject to a Control Agreement all cash received on each Business Day and (iii) not establish or maintain any deposit account, securities account or commodities account unless such deposit account, securities account or commodities account is subject to a Control Agreement as provided in Section 3.14, in each case, other than (A) any payroll account so long as such payroll account is a zero balance account, (B) any disbursement account so long as the cash and Cash Equivalents on deposit in such disbursement account shall not exceed $100,000 at any time, (C) cash and Cash Equivalents on deposit in or credited to the balance of withholding tax, trust and other fiduciary accounts and (D) xxxxx cash accounts not to have more than $50,000 on deposit in the aggregate at any time. Each such Control Agreement shall be in form and substance reasonably satisfactory to the Decision Agent (it being understood that the control agreements of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer Credit Parties in place as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”Restatement Effective Date are in form and substance reasonably satisfactory), the Issuer . Each Credit Party shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement and maintain with one or more banks and pursuant to agreements in form and substance reasonably satisfactory to the Collateral Decision Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Accountlock box arrangements.
(b) Within 90 days Each of Holdings and Parent Borrower shall, and shall cause each Credit Party, to (1i) direct each Account Debtor or other Person obligated to make a payment to any Person becoming of them under any Account or General Intangible to make payment to the applicable Credit Party directly to a Pledgor lockbox account or other deposit account subject to a Control Agreement and (ii) deposit in a deposit account or securities account (as applicable) subject to a Control Agreement promptly (but in any Pledgor acquiring event within three (3) Business Days) upon receipt all Proceeds (as defined in the Code) of such Accounts and General Intangibles received by Holdings, Parent Borrower or opening any Deposit Account such Credit Party from any other Person.
(c) Notwithstanding anything to the contrary in the foregoing clauses (a) or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”b), the applicable Pledgor it is understood and agreed that:
(i) Agent shall ensure that the Collateral Agent has Control with respect not deliver a notice of control or other similar notice to any New Blocked Account of such Pledgor by causing the institution maintaining such accountdepository institution, within 90 days after the date of such Person becoming a Pledgor securities intermediary or the opening of such New Blocked Accountcommodities intermediary, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which any Control Agreement unless (A) an Event of Default shall be continuing or (B) Excess Availability is less than (x) for five (5) consecutive Business Days the applicable institution greater of (i) 12.5% of the aggregate Revolving Loan Commitments then in effect and (ii) $35.0 million or (y) at any time 10% of the Revolving Loan Commitments of all Lenders then in effect; and
(ii) if an Event of Default shall agree to comply with be continuing or Excess Availability is less than (x) for five (5) consecutive Business Days the Collateral Agent’s instructions with respect to disposition greater of funds (A) 12.5% of the aggregate Revolving Loan Commitments then in such Blocked Account without further consent by such Pledgor, effect and (B) $35.0 million or agree to comply with (y) at any time 10% of the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement Revolving Loan Commitments of all Lenders then in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3effect, and, if practicablein each case, prior a control notice or similar notice has been given by Agent in accordance with the applicable Control Agreement and the immediately preceding clause (i), amounts deposited in or credited to such transferdeposit accounts, cause the institution maintaining such account securities accounts or commodities accounts subject to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, Agreements or credited to the extent it is not practicable for lock-box account will be transferred on a daily basis to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) Concentration Account and shall not apply be available to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountapplicable Credit Party.
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Control Agreements. (a) As of The Company will, and the Company will cause each applicable Loan Party to, (i) enter into the Deposit Account Control Agreements required to be provided pursuant to the Security Agreement and (ii) open the Collection Account with the Administrative Agent, in each case no later than the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 is 60 days after the Effective Date (or such later date of this Agreement, by causing as the institution maintaining each such Existing Blocked Account to enter into a Control agreement Administrative Agent shall agree in its Permitted Discretion). In connection with the Collateral foregoing, the Company shall, if requested by the Administrative Agent, pursuant promptly deliver to which the applicable institution shall agree Administrative Agent a favorable written opinion (addressed to comply with the Collateral Agent’s instructions with respect Administrative Agent and the Lenders) of counsel for the Company and the other Loan Parties, in form and substance reasonably satisfactory to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect Administrative Agent and covering customary matters relating to such Securities Deposit Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities AccountAgreements.
(b) Within 90 days The Company shall determine the aggregate balance of cash and Permitted Investments of all Loan Parties in accounts (1other than (i) any Person becoming a Pledgor each deposit account, the funds in which are used, in the ordinary course of business, solely for the payment of salaries and wages, workers’ compensation, pension benefits and similar expenses or taxes related thereto, (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account each deposit account used, in the ordinary course of business, solely for daily accounts payable and that has an ending daily balance of zero, (other than iii) each account, all the Excluded Accounts, collectively, the “New Blocked Accounts”cash and Permitted Investments contained in which are subject to a Lien permitted under Section 6.02(h), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such (iv) each account, within 90 days after all the date of such Person becoming cash and Permitted Investments contained in which are subject to a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, Lien pursuant to Section 6.02(s) to cash collateralize obligations under letters of credit or in respect of Banking Services Obligations and (v) each account, all the cash and Permitted Investments contained in which consist of proceeds of the applicable institution shall agree issuance of any Debt Securities pursuant to comply with Section 6.01(b),
6.01 (r) or 6.01(g) (solely to the Collateral Agent’s instructions with respect extent such Debt Securities constitute an extension, refinancing or renewal of Indebtedness permitted pursuant to Section 6.01(b) or 6.01(r)) and/or proceeds from the sale, transfer or other disposition of funds Term Debt Priority Collateral, in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided thateach case, to the extent it depositing such cash or Permitted Investments in such account is required pursuant to the Senior Secured Notes Documents) not practicable for subject to Deposit Account Control Agreements or other appropriate control agreements in favor of the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent at each time when the Company delivers Borrowing Base reports pursuant to Section 5.01(f), and if such aggregate balance shall at any time of determination exceed $10,000,000, the Company shall promptly eliminate such excess from such accounts or shall within 30 days enter, or cause the institution maintaining such account applicable Loan Parties to enter enter, into a one or more Deposit Account Control agreement prior Agreements or other appropriate control agreements in favor of the Administrative Agent in form and substance reasonably satisfactory to such transfer, Section 2.3(b)(i) the Administrative Agent so that there shall not apply to the new Blocked Account being opened and within 90 days of opening thereafter be any such accountexcess; provided, such Pledgor shall ensure however, that the Collateral Company shall have 60 days after the Effective Date (or such later date as the Administrative Agent has shall agree in its Permitted Discretion) to obtain such Deposit Account Control Agreements or other appropriate control (within the meaning of the UCC) with respect to such accountagreements.
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Control Agreements. (ai) As of Subject to Sections 6.16(d) and 6.16(e), each Loan Party shall, within 60 days after the date hereofClosing Date (or such longer period as the Administrative Agent may agree in its sole discretion) cause each bank at which such Loan Party maintains a Deposit Account (in each case, no Pledgor has any Deposit Accounts, Securities other than Excluded Accounts or Commodities Accounts and other than the accounts listed on Schedule 6. For all Designated Blocked Accounts) (each, a “Collateral Deposit Accounts Account”) and each Securities Accounts maintained by the Issuer as of the date hereof Intermediary at which such Loan Party maintains a Securities Account (in each case, other than Excluded Accounts) (each, collectively, the a “Existing Blocked AccountsCollateral Securities Account”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement Deposit Account Control Agreement or a Securities Account Control Agreement, as the case may be, with the Administrative Agent and such Loan Party.
(ii) In the event (x) any Loan Party or any bank at which a Collateral AgentDeposit Account is maintained shall, pursuant to which after the applicable institution shall agree to comply with date hereof, terminate the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Deposit Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders Control Agreement with respect to such Collateral Deposit Account for any reason, or (y) the Administrative Agent shall demand such termination as a result of the failure of such bank to comply in any material respect with the terms of such Deposit Account Control Agreement, in each case at the Administrative Agent’s written request, such Loan Party shall notify all of its respective obligors that were making payments to such Collateral Deposit Account, to make all future payments to another Collateral Deposit Account.
(iii) In the event (x) any Loan Party or any Securities Account without further consent by such Pledgor, as applicable. If any institution with Intermediary at which a New Blocked Collateral Securities Account is maintained refuses toshall, or does notafter the date hereof, enter into a terminate the Securities Account Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) Agreement with respect to such accountCollateral Securities Account for any reason, or (y) the Administrative Agent shall demand such termination as a result of the failure of a Securities Intermediary to comply in any material respect with the terms of such Securities Account Control Agreement, in each case at the Administrative Agent’s written request, such Loan Party shall notify all of its obligors that were making payments to such Collateral Securities Account to make all future payments to another Collateral Securities Account.
(iv) At no time following the receipt by the Administrative Agent of an Enforcement Notice issued by the Applicable First Lien Agent may any First Lien Trust Monies or identifiable Proceeds of First Lien Priority Collateral be commingled with any ABL Priority Collateral or any Proceeds of ABL Priority Collateral.
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Control Agreements. With respect to any Mortgage Asset or collateral for a Mortgage Asset that is an uncertificated security (a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of defined in the UCC), within 90 days after security entitlements (as defined in the date of this UCC) or is held in a securities account (as defined in the UCC), the Borrower shall provide to the Administrative Agent a control agreement, which shall be acceptable to the Administrative Agent in its discretion and shall be delivered to the Custodian under the Custodial Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent executed by the Issuerissuer of the Mortgage Asset or the collateral for the Mortgage Asset or the related securities intermediary (as defined in the UCC), as applicable, granting control (as defined in the UCC) of such Mortgage Asset or agree collateral for such Mortgage Asset to comply with the Collateral Agent’s Entitlement Orders with respect Administrative Agent and providing that, after an Event of Default, the Administrative agent shall be entitled to such Securities Account without further consent by notify the Issuerissuer or securities intermediary, as applicable. If any institution , that such issuer or securities intermediary shall comply exclusively with which an Existing Blocked Account is maintained refuses tothe instructions or entitlement orders (as defined in the UCC), or does notas applicable, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained hereinAdministrative Agent without the consent of the Borrower or any other Person and no longer follow the instructions or entitlement orders, no institution shall be required to subordinate its security interest in a Deposit Accountas applicable, Securities Account, of the Borrower or Commodities Account.
(b) Within 90 days of (1) any other Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded AccountsAdministrative Agent). All of the Borrowers’ right, collectivelytitle and interest in the Mortgage Assets that constitute GKK CRE CDO Securities shall be pledged to the Administrative Agent on the applicable Borrowing Date. The Borrowers shall deliver to the Custodian on behalf of the Administrative Agent as agent for the Lenders a complete set of all transfer documents to be completed by the Administrative Agent as agent for the Lenders and executed copies of any transfer documents to be completed by the applicable Borrower, in either case in blank, but in form sufficient to allow transfer and registration of such Mortgage Assets to the “New Blocked Accounts”Administrative Agent as agent for the Lenders no later than the proposed Borrowing Date for the relevant Mortgage Asset. All transfers of certificated securities from the Borrowers to the Administrative Agent as agent for the Lenders shall be effected by physical delivery to the Custodian of the Mortgage Assets (duly endorsed by the applicable Borrower, in blank), together with a stock power executed by the applicable Pledgor shall ensure that the Collateral Agent has Control with Borrower, in blank. With respect to any New Blocked Account of such Pledgor by causing Mortgage Assets that shall be delivered through the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor DTC or the opening National Book Entry System of such New Blocked Accountthe Federal Reserve or any similar firm or agency, as applicable, in book–entry form and credited to enter into a control agreement with or otherwise held in an account, the Collateral Agent, pursuant Borrowers shall take such actions necessary to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, provide instruction to the extent it is not practicable for relevant financial institution, clearing corporation, securities intermediary or other entity to cause effect and perfect a legally valid delivery of the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply relevant interest granted herein to the new Blocked Account being opened Administrative Agent as agent for the Lenders hereunder to be held in the Securities Account. Mortgage Assets delivered in book–entry form shall be under the custody of and within 90 days of opening such account, such Pledgor shall ensure that held in the Collateral Agent has control (within the meaning name of the UCC) with respect to such accountAdministrative Agent as agent for the Lenders in the Securities Account.
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Control Agreements. (a) As Borrower agrees that it will not transfer assets out of any Securities Accounts other than as permitted under Section 7.12 and, if to another securities intermediary, unless each of Borrower, Lender, and the date hereof, no Pledgor has substitute securities intermediary have entered into a Control Agreement. No arrangement contemplated hereby or by any Deposit Accounts, Control Agreement in respect of any Securities Accounts or Commodities Accounts other Investment Property shall be modified by Borrower without the prior written consent of Lender. Upon the occurrence and during the continuance of an Event of Default and upon acceleration, Lender may notify any securities intermediary to liquidate the applicable Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to the Lender's Account; (b) Borrower shall deliver for each Deposit Account listed in Section 3.2(b), a Control Agreement in form and substance reasonably acceptable to Lender. Each such Control Agreement shall provide, among other things, that (i) all items of payment deposited in such Deposit Account and proceeds thereof are held by the relevant financial institution for the benefit of Lender or as a bailee-in-possession for Lender, (ii) such financial institution has no rights of setoff or recoupment or any other claim against the applicable Deposit Account, other than for payment of its service fees and other charges directly related to the accounts listed on Schedule 6administration of such Deposit Account and for returned checks or other items of payment, and (iii) upon the occurrence and continuance of an Event of Default, such financial institution immediately will forward by daily sweep all amounts in the applicable Deposit Account to the Lender's Account. For all Borrower agrees that it will not open any Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days Account after the date of this AgreementClosing Date unless Borrower, by causing the Lender and that relevant financial institution maintaining each such Existing Blocked Account to enter have entered into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with Agreement. No arrangement contemplated hereby or by any Control Agreement in respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than shall be modified by Borrower without the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account prior written consent of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountLender.
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Samples: Loan and Security Agreement (New World Restaurant Group Inc)
Control Agreements. (ai) As of the date hereof, no Pledgor Grantor has any Deposit Accounts, Accounts or Securities Accounts or Commodities Accounts that constitutes Collateral other than the accounts listed on in Schedule 6. For all 7 to this Agreement.
(ii) No Grantor shall maintain any Deposit Accounts Account that constitutes Collateral unless the bank where such Deposit Account is maintained and Securities Accounts maintained by such Grantor shall have duly executed and delivered to (A) in the Issuer as case of any Deposit Account constituting ABL Priority Collateral, prior to the date hereof (other than Excluded Accounts, collectivelyDischarge of ABL Obligations, the “Existing Blocked Accounts”)ABL Agent (as such term is defined in the Intercreditor Agreement) or, thereafter, the Issuer shall ensure that Agent or (B) in the Collateral Agent has case of any Deposit Account not constituting ABL Priority Collateral, the Agent, in each case a control agreement with respect to such Deposit Account granting “control” (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each ) over such Existing Blocked Deposit Account to enter into a Control agreement with the Collateral Agent or ABL Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, prior to the extent it Discharge of ABL Obligations no Grantor shall be required to grant “control” over any such Deposit Account constituting ABL Priority Collateral if such Grantor is not practicable for required to grant such “control” to the Issuer ABL Agent. To the extent that a Grantor is required pursuant to cause the institution maintaining such account first sentence of this Section 6(c)(ii) to enter into a Control agreement grant “control” over any Deposit Account prior to the Discharge of ABL Obligations, such transfer, Section 2.3(b)(i) requirements shall not apply be deemed satisfied with respect to any Deposit Account constituting ABL Priority Collateral so long as the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral ABL Agent has is a party to a control agreement granting “control” (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained hereinDeposit Account to the ABL Agent; provided that upon the Discharge of ABL Obligations each Grantor shall cooperate with the ABL Agent, no institution shall be required Agent and each bank to subordinate its security interest in have each control agreement assigned to Agent or replaced with a Deposit Account, Securities Account, or Commodities Accountsubstantially similar agreement.
(biii) Within 90 days No Grantor shall maintain any Securities Account that constitutes Collateral unless the securities intermediary or commodities intermediary where such Securities Account is maintained and such Grantor shall have duly executed and delivered to (A) in the case of any Securities Account constituting ABL Priority Collateral, prior to the Discharge of ABL Obligations, the ABL Agent (1as such term is defined in the Intercreditor Agreement) any Person becoming a Pledgor or, thereafter, the Agent or (iiB) in the case of any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectivelynot constituting ABL Priority Collateral, the “New Blocked Accounts”)Agent, the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into in each case a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by granting “control” (within the meaning of the UCC) over such PledgorSecurities Account to the Agent or ABL Agent, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, prior to the extent it Discharge of ABL Obligations, no Grantor shall be required to grant “control” over any such Securities Account constituting ABL Priority Collateral if such Grantor is not practicable for required to cause grant such “control” to the institution maintaining such account ABL Agent. To the extent that a Grantor is required pursuant to enter into a Control agreement the first sentence of this Section 6(c)(iii) to grant “control” over any Securities Account prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days Discharge of opening such accountABL Obligations, such Pledgor requirements shall ensure that be deemed satisfied with respect to any Securities Account constituting ABL Priority Collateral so long as the Collateral ABL Agent has is a party to a control agreement granting “control” (within the meaning of the UCC) with respect to such accountSecurities Account to the ABL Agent; provided that upon the Discharge of ABL Obligations each Grantor shall cooperate with the ABL Agent, Agent and each securities and commodities intermediary to have each control agreement assigned to Agent or replaced with a substantially similar agreement.
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Control Agreements. (a) As Borrower agrees that it will not, and will not permit its Subsidiaries to, transfer assets out of any of their Deposit Accounts (other than as specified in Section 2.7 with respect to Cash Management Accounts) or Securities Accounts; provided, however, that so long as no Event of Default has occurred and is continuing or would result therefrom, Borrower and its Subsidiaries may use such assets (and the date proceeds thereof) to the extent not prohibited by this Agreement or the other Loan Documents and, if the transfer is to another bank or securities intermediary, so long as Borrower (or its Subsidiary, as applicable), Agent, and the substitute bank or securities intermediary have entered into a Control Agreement (subject to Section 7.12 hereof, no Pledgor has ). No arrangement contemplated hereby or by any Deposit Accounts, Control Agreement in respect of any Securities Accounts or Commodities Accounts other than Investment Property shall be modified by Borrower without the accounts listed on Schedule 6prior written consent of Agent. For all Upon the occurrence and during the continuance of an Event of Default, subject to the DIP Orders, Agent may notify any bank or securities intermediary to liquidate the applicable Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof Account (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, including pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC2.7(c) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required Cash Management Accounts) or Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to subordinate its security interest in a Deposit Account, Securities Account, the Agent’s Account or Commodities Accountas otherwise directed by Agent.
(b) Within 90 days of Borrower agrees that, subject to Section 2.7 (1with respect to Cash Management Accounts) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any and Section 7.12 with respect to all other Deposit Account or Accounts and Securities Account (other than the Excluded Accounts, collectivelyit will and will cause its Subsidiaries to take any or all reasonable steps that Agent requests in order for Agent to obtain control in accordance with Sections 9-104, 9-105, 9- 106, and 9-107 of the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control Code with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account(i) its or their Securities Accounts, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked AccountDeposit Accounts, as applicableelectronic chattel paper, to enter into a control agreement with the Collateral AgentInvestment Property, and (ii) pursuant to which the applicable institution shall agree to comply with the Collateral any such reasonable (in Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such PledgorPermitted Discretion) request, its or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accounttheir letter-of-credit rights.
Appears in 1 contract
Samples: Debt and Security Agreement
Control Agreements. (a) As (i) Enter into the Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the date hereofGuarantee and Collateral Agreement, no Pledgor has any Deposit Accounts(ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, Securities Accounts or Commodities Accounts other than (iii) enter into the accounts listed on Schedule 6Collateral Access Agreements required to be provided pursuant to Section 5.13 of the Guarantee and Collateral Agreement, (iii) open the Collection Account with the Administrative Agent and (iv) deliver to the Administrative Agent executed DDA Notifications (as defined in the Guarantee and Collateral Agreement) required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement. For all Deposit Accounts and Securities Accounts maintained In connection with the foregoing, the Borrower shall, if requested by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Administrative Agent, pursuant promptly deliver to which the applicable institution shall agree Administrative Agent a favorable written opinion (addressed to comply with the Collateral Agent’s instructions with respect Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect Administrative Agent and covering customary matters relating to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (control and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Accountaccess agreements.
(b) Within 90 days The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts (1including Reserved Local Blocked Accounts but other than (i) any Person becoming a Pledgor each Deposit Account, the funds in which are used, in the ordinary course of business, solely for the payment of salaries and wages, workers’ compensation, pension benefits and similar expenses or taxes related thereto, (ii) any Pledgor acquiring or opening any each Deposit Account or Securities Account (other than a Reserved Local Blocked Account) used, in the Excluded ordinary course of business, solely for daily accounts payable and that has an ending daily balance of zero and (iii) each Deposit Account (other than Reserved Local Blocked Accounts) used in the ordinary course of business for local store accounts (which shall be governed by Section 6.4 of the Guarantee and Collateral Agreement)) not subject to Deposit Account Control Agreements or other appropriate control agreements in favor of the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent at each time when the Borrower delivers Borrowing Base reports pursuant to Section 6.2(g), collectivelyand (x) if such aggregate balance under clause (ii) above shall at any time of determination exceed $1,000,000, the “New Borrower shall promptly eliminate such excess from such accounts or shall within 30 days enter, or cause the applicable Loan Parties to enter, into one or more Deposit Account Control Agreements or other appropriate control agreements in favor of the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent so that there shall not thereafter be any such excess and (y) if such aggregate balance in Reserved Local Blocked Accounts”)Accounts shall at any time of determination exceed $1,000,000, the applicable Pledgor shall ensure Borrower shall, within three Business Days, eliminate such excess from such accounts; provided, however, that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 Borrower shall have 30 days after the Closing Date (or such later date of such Person becoming a Pledgor or as the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution Administrative Agent shall agree in its Permitted Discretion) to comply with the Collateral Agent’s instructions with respect to disposition of funds in obtain such Blocked Deposit Account without further consent by such Pledgor, Control Agreements or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has other appropriate control (within the meaning of the UCC) with respect to such accountagreements.
Appears in 1 contract
Samples: Secured Superpriority Debtor in Possession Credit Agreement (NBC Acquisition Corp)
Control Agreements. (a) As Borrower agrees that it will not, and will not permit its Subsidiaries to, transfer assets out of any of their Deposit Accounts (other than as specified in Section 2.7 with respect to Cash Management Accounts) or Securities Accounts; provided, however, that so long as no Event of Default has occurred and is continuing or would result therefrom, Borrower and its Subsidiaries may use such assets (and the date proceeds thereof) to the extent not prohibited by this Agreement or the other Loan Documents and, if the transfer is to another bank or securities intermediary, so long as Borrower (or its Subsidiary, as applicable), Agent, and the substitute bank or securities intermediary have entered into a Control Agreement (subject to Section 7.12 hereof, no Pledgor has ). No arrangement contemplated hereby or by any Deposit Accounts, Control Agreement in respect of any Securities Accounts or Commodities Accounts other than Investment Property shall be modified by Borrower without the accounts listed on Schedule 6prior written consent of Agent. For all Upon the occurrence and during the continuance of an Event of Default, Agent may notify any bank or securities intermediary to liquidate the applicable Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof Account (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, including pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC2.7(c) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required Cash Management Accounts) or Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to subordinate its security interest in a Deposit Account, Securities Account, the Agent’s Account or Commodities Accountas otherwise directed by Agent.
(b) Within 90 days of Borrower agrees that, subject to Section 2.7 (1with respect to Cash Management Accounts) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any and Section 7.12 with respect to all other Deposit Account or Accounts and Securities Account (other than the Excluded Accounts, collectivelyit will and will cause its Subsidiaries to take any or all reasonable steps that Agent requests in order for Agent to obtain control in accordance with Sections 9-104, 9-105, 9-106, and 9-107 of the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control Code with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account(i) its or their Securities Accounts, within 90 days after the date of such Person becoming Deposit Accounts, electronic chattel paper, Investment Property, and (ii) only during a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral AgentTriggering Period, pursuant to which the applicable institution any such reasonable (in Agent's Permitted Discretion) request, its or their letter-of-credit rights; provided, however, that Borrower shall agree not be so required to comply with the Collateral Agent’s instructions cause Agent to obtain such control with respect to disposition of funds in such Blocked the Special Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such and Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountInvestments.
Appears in 1 contract
Control Agreements. (a) As Borrower agrees that it will not, and will not permit its Subsidiaries to, transfer assets out of any of their Deposit Accounts (other than as specified in Section 2.7 with respect to Cash Management Accounts) or Securities Accounts; provided, however, that so long as no Event of Default has occurred and is continuing or would result therefrom, Borrower and its Subsidiaries may use such assets (and the date proceeds thereof) to the extent not prohibited by this Agreement or the other Loan Documents and, if the transfer is to another bank or securities intermediary, so long as Borrower (or its Subsidiary, as applicable), Agent, and the substitute bank or securities intermediary have entered into a Control Agreement (subject to Section 7.12 hereof, no Pledgor has ). No arrangement contemplated hereby or by any Deposit Accounts, Control Agreement in respect of any Securities Accounts or Commodities Accounts other than Investment Property shall be modified by Borrower without the accounts listed on Schedule 6prior written consent of Agent. For all Upon the occurrence and during the continuance of an Event of Default, Agent may notify any bank or securities intermediary to liquidate the applicable Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof Account (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, including pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC2.7(c) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required Cash Management Accounts) or Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to subordinate its security interest in a Deposit Account, Securities Account, the Agent's Account or Commodities Accountas otherwise directed by Agent.
(b) Within 90 days of Borrower agrees that, subject to Section 2.7 (1with respect to Cash Management Accounts) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any and Section 7.12 with respect to all other Deposit Account or Accounts and Securities Account (other than the Excluded Accounts, collectivelyit will and will cause its Subsidiaries to take any or all reasonable steps that Agent requests in order for Agent to obtain control in accordance with Sections 9-104, 9-105, 9-106, and 9-107 of the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control Code with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account(i) its or their Securities Accounts, within 90 days after the date of such Person becoming Deposit Accounts, electronic chattel paper, Investment Property, and (ii) only during a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral AgentTriggering Period, pursuant to which the applicable institution any such reasonable (in Agent's Permitted Discretion) request, its or their letter-of-credit rights; provided, however, that Borrower shall agree not be so required to comply with the Collateral Agent’s instructions cause Agent to obtain such control with respect to disposition of funds in such Blocked the Special Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such and Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountInvestments.
Appears in 1 contract
Control Agreements. (a) As Obligors agree that they will not transfer assets out of any of their Deposit Accounts or Securities Accounts; provided, however, that (i) any Obligor may make any such transfer if immediately thereafter, the Obligors are in compliance with Section 2.7(b) and (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, Obligors may use such assets (and the proceeds thereof) to the extent not prohibited by this Agreement or the other Financing Documents and, if the transfer is to another bank or securities intermediary and made after the Discharge of Credit Obligations (unless otherwise permitted under Section 2.7(b)), so long as the applicable Obligor, Trustee, and the substitute bank or securities intermediary have entered into a Control Agreement, After the Discharge of Credit Agreement Obligations, Obligors agree that they will, subject to Sections 2.2, 2.5 and 2.7(b), take any or all reasonable steps that Trustee requests in order for Trustee to obtain control in accordance with Sections 8-106, 9-104, 9-105, 9-106, and 9-107 of the date hereofCode with respect to any of its or their Securities Accounts, no Pledgor has any Deposit Accounts, electronic chattel paper, Investment Property, and letter-of-credit rights. No Control Agreement in respect of any Securities Accounts or Commodities Accounts other than Investment Property shall be modified by Obligors without the accounts listed on Schedule 6prior written consent of Trustee. For all After the Discharge of Credit Agreement Obligations, upon the occurrence and during the continuance of an Event of Default, subject to the provisions of any Control Agreement, Trustee may notify any bank or securities intermediary to liquidate the applicable Deposit Accounts Account or Securities Account or any related Investment Property maintained or held thereby and Securities Accounts maintained remit the proceeds thereof to an account designated by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which Trustee for the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a)Obligor; provided that, notwithstanding anything in any Financing Document to the extent contrary, Trustee agrees that it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply give any bank or securities intermediary written notice instructing such bank or securities intermediary to cease honoring the new Blocked Account being opened applicable Obligor’s instructions unless and within 90 days until an Event of opening such account, the Issuer shall ensure that the Collateral Agent Default has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Accountoccurred and is continuing.
(b) Within 90 days After the Discharge of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account Credit Agreement Obligations, Obligors shall not have Permitted Investments (other than the Excluded Cash Management Accounts, collectively, the “New Blocked Accounts”), ) in Deposit Accounts or Securities Accounts in an aggregate amount in excess of $4,000,000 outstanding at any one time unless the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which Obligor and the applicable institution shall agree securities intermediary or bank have entered into Control Agreements or similar arrangements governing such Permitted Investments in order to comply with perfect (and further establish) the Collateral AgentTrustee’s instructions with respect to disposition of funds Liens in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountPermitted Investments.
Appears in 1 contract
Samples: Security Agreement (SMART Modular Technologies (DE), Inc.)
