Control Agreements. (a) (i) Enter into the Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the Guarantee and Collateral Agreement, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, (iii) enter into the Collateral 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. In connection with the foregoing, the Borrower shall, if requested by the Administrative Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and covering customary matters relating to such control and access agreements. (b) The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts (other than (i) 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) 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 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 (ii) above shall at any time of determination exceed $1,000,000, the 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; provided, however, that the Borrower shall have 90 days after the Closing Date (or such later date as the Administrative Agent shall agree in its Permitted Discretion) to obtain such Deposit Account Control Agreements or other appropriate control agreements.
Appears in 4 contracts
Samples: Credit Agreement (NBC Acquisition Corp), Credit Agreement (Nebraska Book Co), Credit Agreement (Nebraska Book Co)
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 (iother 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) Enter 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 Deposit 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 Control Agreements 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 be provided pursuant to Section 6.1 of the Guarantee and Collateral Agreementsubordinate its security interest in a Deposit Account, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral AgreementSecurities Account, (iii) enter into the Collateral 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. In connection with the foregoing, the Borrower shall, if requested by the Administrative Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and covering customary matters relating to such control and access agreementsor Commodities Account.
(b) The Borrower shall determine the aggregate balance Within 90 days of cash and Cash Equivalents of all Loan Parties in accounts (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than (i) each deposit 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, 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) 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 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 (ii) above shall at any time of determination exceed $1,000,000, the 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; provided, however, that the Borrower shall have 90 days after the Closing Date (date of such Person becoming a Pledgor or the opening of such later date New Blocked Account, as applicable, to enter into a control agreement with the Administrative Agent 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 its Permitted Discretionsuch 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 obtain another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such Deposit 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 Control Agreements or other appropriate being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control agreements(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.), Subscription Agreement (Intercept Pharmaceuticals, Inc.)
Control Agreements. (a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodity Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts, Securities Accounts and Commodity Accounts maintained by the Issuer as of the date hereof (iother than Excluded Accounts), collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) Enter within 60 days after the date of this Agreement with respect to any such Existing Blocked Account of the Issuer by causing the institution maintaining such Existing Blocked Account to enter into a control agreement with the Deposit Collateral Agent (“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 instructions or 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 Agreements Agreement in response to reasonable comments from the Collateral Agent (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 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 be provided pursuant to Section 6.1 of the Guarantee and Collateral Agreementsubordinate its security interest in a Deposit Account, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral AgreementSecurities Account, (iii) enter into the Collateral 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. In connection with the foregoing, the Borrower shall, if requested by the Administrative Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and covering customary matters relating to such control and access agreementsor Commodity Account.
(b) The Borrower shall determine the aggregate balance Within 90 days of cash and Cash Equivalents of all Loan Parties in accounts (i) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account, Securities Account or Commodity Account (other than the Excluded Accounts) (any accounts under the foregoing clauses (i) each deposit 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, 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) 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 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 (ii) above shall at any time of determination exceed $1,000,000, the 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; provided, however, that the Borrower shall have 90 days after the Closing Date (date of such Person becoming a Pledgor or the opening of such later date New Blocked Account, as applicable, to enter into a Control Agreement with the Administrative 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 its Permitted Discretionsuch 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 (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 appliable New Blocked Account, transfer all balances therein to obtain another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such Deposit 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 such Pledgor 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 Control Agreements or other appropriate being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control agreements(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. Within the time periods set forth in Sections 8.18 and 8.19(a) of the Revolving Credit Agreement and Sections 8.18 and 8.20(a) of the Term Loan Agreement, for each Deposit Account, Securities Account and Commodity Account (aother than Excluded Accounts) (i) Enter into the Deposit Account Control Agreements required to be provided that such Grantor at any time maintains, such Grantor will, at all times, pursuant to Section 6.1 of the Guarantee and Collateral Agreement, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, (iii) enter into the Collateral 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. In connection with the foregoing, the Borrower shall, if requested by the Administrative Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, Control Agreement in form and substance reasonably satisfactory to the Administrative Collateral Agent, cause the depository bank that maintains such Deposit Account, the securities intermediary that maintains such Securities Account, or the commodities intermediary that maintains such Commodity Account, as applicable, to agree to comply at any time (a) with entitlement orders from the Collateral Agent and covering customary matters relating to such control and access agreements.
securities intermediary with regard to a Securities Account, (b) The Borrower 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 determine take such other action as the aggregate balance Collateral Agent may reasonably request or approve in order to perfect the Collateral Agent’s (on behalf of cash and Cash Equivalents of all Loan Parties the Secured Parties) security interest in accounts such Deposit Account, Securities Account or Commodity Account, 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 (i) 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) 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 as a result of the Guarantee and Collateral Agreement)closing of such Excluded Account) not unless such Deposit Account, Securities Account or Commodity Account, as applicable, is subject to Deposit Account a Control Agreements or other appropriate control agreements Agreement in favor of the Administrative Collateral Agent in form and substance reasonably satisfactory to the Administrative Collateral Agent. Notwithstanding the foregoing or the terms of any Control Agreement, unless an Event of Default is continuing the Collateral Agent at each time when will not enforce the Borrower delivers Borrowing Base reports pursuant terms of any Control Agreement in order to Section 6.2(g)take possession of, and if such aggregate balance under clause (ii) above shall at or prevent or limit the ability of any time of determination exceed $1,000,000Grantor to direct the disposition of, the funds and other assets held in any Deposit Account, Securities Account or Commodity Account. The Borrower shall promptly eliminate such excess from such accounts or shall within 30 days enter, or cause the applicable Loan Parties agrees 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 provide to the Administrative Collateral Agent so that there shall not thereafter be any such excess; provided, however, each notice that the Borrower shall have 90 days after provides to the Closing Date (or such later date as the Revolving Administrative Agent shall agree in its Permitted Discretion(at the time such notice is provided to the Revolving Administrative Agent) to obtain such regarding the opening of a Deposit Account, Securities Account Control Agreements or Commodity Account (other appropriate control agreementsthan an Excluded Account).
Appears in 2 contracts
Samples: Guaranty and Collateral Agreement, Guaranty and Collateral Agreement (Ultra Petroleum Corp)
Control Agreements. (a) (i) Enter into the Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the Guarantee and Collateral Agreement, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, (iii) enter into the Collateral 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. In connection with the foregoingIf a Cash Dominion Period commences, the Borrower shallLoan Parties, if requested by promptly upon the request of the Administrative Agent, promptly shall deliver to the Administrative Agent a favorable written opinion schedule of all Deposit Accounts and Securities Accounts that are maintained by the Loan Parties, which Schedule shall include, with respect to each depository, (addressed to i) the name and address of such depository, (ii) the account number(s) maintained with such depository, and (iii) a contact person at such depository.
(b) Within 90 days after the Effective Date (or such later date as the Administrative Agent and the Lenders) of counsel for the Borrower and the other may reasonably agree in its sole discretion), each Loan PartiesParty 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”) 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 covering customary matters relating 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 Control Accounts and access agreements(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.
(bc) The Borrower 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 determine cause the aggregate balance of cash and Cash Equivalents wire transfer on each Business Day (whether or not there are at the time outstanding Loans) of all Loan Parties in accounts (other than available cash receipts to the Concentration Account, from:
(i) each deposit account, the funds in which are used, in the ordinary course sale of business, solely for the payment of salaries and wages, workers’ compensation, pension benefits and similar expenses or taxes related thereto, Inventory;
(ii) each deposit account usedall proceeds of collections of Accounts (including in respect of credit card receivables, in the ordinary course of business, solely for daily accounts payable and that has an ending daily balance of zero and whether or not constituting Eligible Credit Card Receivables); and
(iii) each Control Account (including all cash deposited therein from each Deposit Account used 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 amounts contained in Excluded Accounts) are deposited to any account, or held or invested in any manner, otherwise than in a Control Account, the ordinary course applicable Loan Party shall close such account, as soon as practicable following the occurrence of business for local store accounts a Cash Dominion Period, and have all funds therein and all future deposits thereto transferred to a Control Account. If on any date (which i) Availability shall be governed by Section 6.4 less than 25% of the Guarantee and Line Cap or (ii) the Revolving Credit Exposure (not including any LC Exposure) shall exceed 50% of the Line Cap, then (A) each Loan Party shall promptly enter into an amendment to the Collateral Agreement)) not subject Agreement satisfactory to Deposit Account Control Agreements or other appropriate control agreements in favor of 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 at each time when Agent, with the Borrower delivers Borrowing Base reports pursuant to Section 6.2(g), applicable securities intermediaries in respect of such Securities Accounts as shall 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 if such aggregate balance under clause (ii) above shall at any time of determination exceed $1,000,000, the Borrower shall promptly eliminate such excess from all times thereafter cause all such accounts or shall within 30 days enter, or cause the applicable to 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 enter, into one or more Deposit Account Control Agreements or other appropriate control agreements in favor of the execution and delivery to the Administrative Agent in form of appropriate Control Agreements consistent with the provisions of this Section 5.16 and substance otherwise reasonably satisfactory to the Administrative Agent. The Loan Parties shall furnish the Administrative Agent so that there shall not thereafter be any such excess; provided, however, that the Borrower shall have 90 days after the Closing Date (with prior written notice of their intention to open or such later date as close a Control Account and the Administrative Agent shall agree 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 its Permitted Discretionthe 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 other funds or deposited in any account of such Loan Party and shall promptly be deposited into the Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.
(g) Any amounts received in the Concentration Account at any time when all of the Obligations then due have been and remain fully repaid (and all deposits required to obtain such Deposit be made pursuant to Section 2.09(f) or 2.17(f) shall have been made) shall be remitted to the operating account of the Parent Borrower maintained with the Administrative Agent.
(h) The Administrative Agent shall not give any notice of exclusive control or similar notice for any Control Account unless a Cash Dominion Period has occurred and is continuing. The Administrative Agent shall promptly (but in any event within two Business Days) furnish written notice to each Person with whom a Control Agreements or other appropriate control agreementsAccount is maintained of any termination of a Cash Dominion Period.
Appears in 2 contracts
Samples: Credit Agreement (J C Penney Co Inc), Credit Agreement (J C Penney Co Inc)
Control Agreements. Within the time period set forth in Section 11.2(c) of the Indenture, for each Deposit Account, Securities Account and Commodity Account (other than Excluded Accounts) that such Grantor at any time maintains, such Grantor will cause (or, at any time prior to the Discharge of Senior Obligations, while and to the extent an agreement granting “control” to the First Lien Collateral Agent over any such Deposit Account, Securities Account or Commodity Account is in effect, will make commercially reasonable efforts to cause) at all times, pursuant to a Control Agreement in form satisfactory to the Collateral Agent, the depository bank that maintains such Deposit Account, the securities intermediary that maintains such Securities Account, or the commodities intermediary that maintains such Commodity Account, as applicable, to agree to comply at any time (a) (i) Enter into the Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the Guarantee and Collateral Agreement, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, (iii) enter into with entitlement orders from the Collateral 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. In connection with the foregoing, the Borrower shall, if requested by the Administrative Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and covering customary matters relating to such control and access agreements.
securities intermediary with regard to a Securities Account, (b) The Borrower 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 determine take such other action as is necessary, or as the aggregate balance Collateral Agent may reasonably request, in order to perfect the Collateral Agent’s (on behalf of cash and Cash Equivalents of all Loan Parties the Secured Parties) security interest in accounts such Deposit Account, Securities Account or Commodity Account, 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 (i) 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) 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 as a result of the Guarantee and Collateral Agreement)closing of such Excluded Account) not unless such Deposit Account, Securities Account or Commodity Account, as applicable, is subject to Deposit Account a Control Agreements or other appropriate control agreements Agreement in favor of the Administrative Collateral Agent in form and substance reasonably 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 (at the 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 at each time when then it shall be deemed to be acceptable the Borrower delivers Borrowing Base reports pursuant to Collateral Agent for purposes of complying with this Section 6.2(g), 6.9 and if such aggregate balance under clause (ii) above if the Grantors shall at any time of determination exceed $1,000,000have 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 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 form of the Administrative Agent Control Agreement (subject to customary modification to reflect the Applicable Agent’s interest in form and substance reasonably satisfactory such Deposit Accounts) delivered to the Administrative First Lien Collateral Agent so that there shall not thereafter be any such excessdeemed acceptable to the Collateral Agent for purposes of complying with this Section 6.9; provided, however, that no Control Agreement shall be deemed to be acceptable to the Borrower shall have 90 days after Collateral Agent if it requires the Closing Date (or such later date as the Administrative Collateral Agent shall agree in its Permitted Discretion) individual capacity to obtain such Deposit Account Control Agreements indemnify the commodity intermediary, banking institution or other appropriate control agreementssecurities 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) (i) Enter into the Deposit Account Control Agreements required With respect to be provided pursuant to Section 6.1 of the Guarantee and Collateral Agreement, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, (iii) enter into the Collateral 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 any Mortgage Asset or collateral for a Mortgage Asset that is an uncertificated security (as defined in the Guarantee and Collateral AgreementUCC), securities entitlement (as defined in the UCC) required to be provided pursuant to Section 6.4 of or is held in a securities account (as defined in the Guarantee and Collateral Agreement. In connection with the foregoingUCC), the Borrower shall, if requested by the Administrative Agent, promptly deliver shall provide to the Administrative Agent a favorable written opinion control agreement, which shall be acceptable to the Administrative Agent in its discretion and shall be delivered to the Custodian under the Custodial Agreement, executed by the issuer of the Mortgage Asset or the collateral for the Mortgage Asset or the related securities intermediary (addressed as defined in the UCC), as applicable, granting control (as defined in the UCC) of such Mortgage Asset or collateral for such Mortgage Asset to the Administrative Agent and providing that, after an Event of Default, the Lenders) Administrative agent shall be entitled to notify the issuer or securities intermediary, as applicable, that such issuer or securities intermediary shall comply exclusively with the instructions or entitlement orders (as defined in the UCC), as applicable, of counsel for the Administrative Agent without the consent of the Borrower or any other Person and no longer follow the instructions or entitlement orders, as applicable, of the Borrower or any other Loan PartiesPerson (other than the Administrative Agent). All of the Borrowers’ right, title and interest in form and substance reasonably satisfactory the Mortgage Assets that constitute CMBS Securities shall be pledged to the Administrative Agent and covering customary matters relating on the applicable Borrowing Date. The Borrowers shall deliver to such control and access agreements.
(b) The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts (other than (i) 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) 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 other appropriate control agreements in favor 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 substance reasonably satisfactory registration of such Mortgage Assets to the Administrative Agent at each time when as agent for the Borrower delivers Lenders no later than the proposed Borrowing Base reports pursuant Date for the relevant Mortgage Asset, and such CMBS Securities shall be medallion guaranteed. All transfers of certificated securities from the Borrowers to Section 6.2(gthe 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 Borrower, in blank. With respect to Mortgage Assets that shall be delivered through the DTC or the National Book Entry System of the Federal Reserve or any similar firm or agency, as applicable, in book–entry form and if such aggregate balance under clause (ii) above shall at any time of determination exceed $1,000,000credited to or otherwise held in an account, the Borrower Borrowers shall promptly eliminate take such excess from such accounts or shall within 30 days enteractions necessary to provide instruction to the relevant financial institution, or cause the applicable Loan Parties to enterclearing corporation, into one or more Deposit Account Control Agreements securities intermediary or other appropriate control agreements entity to effect and perfect a legally valid delivery of the relevant interest granted herein to the Administrative Agent as agent for the Lenders hereunder to be held in favor the Securities Account. Mortgage Assets delivered in book–entry form shall be under the custody of and held in the name of the Administrative Agent as agent for the Lenders in form and substance reasonably satisfactory to the Administrative Agent so that there shall not thereafter be any such excess; provided, however, that the Borrower shall have 90 days after the Closing Date (or such later date as the Administrative Agent shall agree in its Permitted Discretion) to obtain such Deposit Account Control Agreements or other appropriate control agreementsSecurities Account.
Appears in 2 contracts
Samples: Credit Agreement (Northstar Realty), Credit Agreement (CapLease, Inc.)
Control Agreements. (a) (i) Enter into the Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the Guarantee and Collateral Agreement, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, (iii) enter into the Collateral 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. In connection with the foregoing, the Borrower shall, if requested by the Administrative Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and covering customary matters relating to such control and access agreements.
(b) The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts (including Reserved Local Blocked Accounts but other than (i) each deposit accountDeposit 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) each deposit account Deposit Account (other than a Reserved Local Blocked 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 (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), and (x) if such aggregate balance under clause (ii) above shall at any time of determination exceed $1,000,000, the 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 excessexcess and (y) if such aggregate balance in Reserved Local Blocked Accounts shall at any time of determination exceed $1,000,000, the Borrower shall, within three Business Days, eliminate such excess from such accounts; provided, however, that the Borrower shall have 90 30 days after the Closing Date (or such later date as the Administrative Agent shall agree in its Permitted Discretion) to obtain such Deposit Account Control Agreements or other appropriate control agreements.
Appears in 1 contract
Samples: Secured Superpriority Debtor in Possession Credit Agreement (NBC Acquisition Corp)
Control Agreements. (a) (i) Enter into the Deposit Account Control Agreements required Subject to be provided pursuant to Section 6.1 of the Guarantee Sections 6.16(d) and Collateral Agreement6.16(e), (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, (iii) enter into the Collateral 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. In connection with the foregoing, the Borrower each Loan Party shall, if requested by the Administrative Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and covering customary matters relating to such control and access agreements.
(b) The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts (other than (i) 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) 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 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 (ii) above shall at any time of determination exceed $1,000,000, the 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; provided, however, that the Borrower shall have 90 60 days after the Closing Date (or such later date longer period as the Administrative Agent shall may agree in its Permitted Discretionsole discretion) cause each bank at which such Loan Party maintains a Deposit Account (in each case, other than Excluded Accounts and other than the Designated Blocked Accounts) (each, a “Collateral Deposit Account”) and each Securities Intermediary at which such Loan Party maintains a Securities Account (in each case, other than Excluded Accounts) (each, a “Collateral Securities Account”), to obtain enter into a 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 Deposit Account is maintained shall, after the date hereof, terminate the Deposit Account 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 Agreements 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 other appropriate control agreementsany Securities Intermediary at which a Collateral Securities Account is maintained shall, after the date hereof, terminate the Securities Account Control Agreement with respect to such Collateral 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.
Appears in 1 contract
Control Agreements. (a) (i) Enter into Subject to Section 4.19 of the Indenture, each Grantor shall obtain and keep effective a Control Agreement from each bank maintaining a Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the Guarantee for such Grantor (other than Excluded Assets) including such bank and Collateral Agreement, Deposit Accounts set forth on Schedule 6(k);
(ii) enter into the Local Blocked Account Agreements required to be provided pursuant Subject to Section 6.4 4.19 of the Guarantee Indenture, each Grantor shall obtain and Collateral 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) enter into the Collateral Access Agreements required to be provided pursuant Subject to Section 5.13 4.19 of the Guarantee Indenture and Collateral Agreementexcept to the extent otherwise excused by the Second Lien Documents, (iii) open the Collection Account each Grantor shall obtain and keep effective a Control Agreement with the Administrative Agent and respect to all of such Grantor’s investment property other than Excluded Assets;
(iv) deliver Subject to the Administrative Intercreditor Agreement, each such Control Agreement shall provide, among other things, that upon notice from Control Agent executed DDA Notifications (as defined a “Control Notice”), the bank, intermediary or other Person described in clauses (i)-(iii) above will comply with any instructions originated by Control Agent directing the disposition of funds in the Guarantee applicable Account without further consent by the applicable Grantor. Collateral Agent agrees not to issue a Control Notice unless a Triggering Event has occurred and is continuing at the time such Control Notice is issued. Collateral AgreementAgent agrees to rescind a Control Notice (the “Rescission”) required to be provided pursuant to Section 6.4 if : (1) the Triggering Event has been cured or waived in writing in accordance with the terms of the Guarantee Indenture, and Collateral Agreement. In connection with (2) no additional Triggering Event has occurred and is continuing prior to the foregoingdate of the Rescission or is reasonably expected to occur on or immediately after the date of 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 described in clauses (i)-(iii) above and Grantors may amend Schedule 6(k); provided however, in respect of such Deposit Accounts (other than Excluded Assets), as promptly as practicable after such closure or replacement, the Borrower shallapplicable Grantor and such bank, if requested by the Administrative Agent, promptly deliver intermediary or other Person shall have executed and delivered to the Administrative Collateral Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, Control Agreement in form and substance reasonably satisfactory to the Administrative Agent and covering customary matters relating to such control and access agreementsCollateral Agent.
(b) The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts (other than (i) 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) 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 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 (ii) above shall at any time of determination exceed $1,000,000, the 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; provided, however, that the Borrower shall have 90 days after the Closing Date (or such later date as the Administrative Agent shall agree in its Permitted Discretion) to obtain such Deposit Account Control Agreements or other appropriate control agreements.
Appears in 1 contract
Samples: Security Agreement (Platinum Pressure Pumping, Inc.)
Control Agreements. (a) (i) Enter into the Borrower agrees that it will not, and will not permit its Subsidiaries to, transfer assets out of any of their Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the Guarantee and Collateral Agreement, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, (iii) enter into the Collateral 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. In connection with the foregoing, the Borrower shall, if requested by the Administrative Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and covering customary matters relating to such control and access agreements.
(b) The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts Accounts (other than (ias specified in Section 2.7 with respect to Cash Management Accounts) 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) 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 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 (ii) above shall at any time of determination exceed $1,000,000, the 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 excessSecurities 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 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 shall have 90 days after the Closing Date (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 arrangement contemplated hereby or by any Control Agreement in respect of any Securities Accounts or other Investment Property shall be modified by Borrower without the prior written consent of Agent. 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 Account (including pursuant to Section 2.7(c) with respect to Cash Management Accounts) or Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to the Agent’s Account or as otherwise directed by Agent.
(b) Borrower agrees that, subject to Section 2.7 (with respect to Cash Management Accounts) and Section 7.12 with respect to all other Deposit Accounts and Securities Accounts, it 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 Code with respect to any of (i) its or their Securities Accounts, Deposit Accounts, electronic chattel paper, Investment Property, and (ii) only during a Triggering Period, pursuant to any such later date as the Administrative Agent shall agree reasonable (in its Agent’s 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 Deposit control with respect to the Special Account Control Agreements or other appropriate control agreementsand Securities Investments.
Appears in 1 contract
Control Agreements. (a) (i) Enter into the Deposit Account Control Agreements required to be provided pursuant to Section 6.1 As of the Guarantee and date hereof, no Grantor has any Deposit Accounts or Securities Accounts that constitutes Collateral other than the accounts listed in Schedule 7 to this Agreement, .
(ii) enter into No Grantor shall maintain any Deposit Account that constitutes Collateral unless the Local Blocked bank where such Deposit Account Agreements is maintained and such Grantor shall have duly executed and delivered to (A) in the case of any Deposit Account constituting ABL Priority Collateral, prior to the Discharge of ABL Obligations, the ABL Agent (as such term is defined in the Intercreditor Agreement) or, thereafter, the Agent or (B) in the 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) over such Deposit Account to the Agent or ABL Agent, as applicable; provided that, prior to the Discharge of ABL Obligations no Grantor shall be required to be provided grant “control” over any such Deposit Account constituting ABL Priority Collateral if such Grantor is not required to grant such “control” to the ABL Agent. To the extent that a Grantor is required pursuant to the first sentence of this Section 6.4 6(c)(ii) to grant “control” over any Deposit Account prior to the Discharge of ABL Obligations, such requirements shall be deemed satisfied with respect to any Deposit Account constituting ABL Priority Collateral so long as the ABL Agent is a party to a control agreement granting “control” (within the meaning of the Guarantee UCC) with respect to such Deposit Account to the ABL Agent; provided that upon the Discharge of ABL Obligations each Grantor shall cooperate with the ABL Agent, Agent and Collateral Agreement, each bank to have each control agreement assigned to Agent or replaced with a substantially similar agreement.
(iii) enter into No Grantor shall maintain any Securities Account that constitutes Collateral unless the Collateral Access Agreements required securities intermediary or commodities intermediary where such Securities Account is maintained and such Grantor shall have duly executed and delivered to be provided pursuant to Section 5.13 (A) in the case of the Guarantee and Collateral Agreementany Securities Account constituting ABL Priority Collateral, (iii) open the Collection Account with the Administrative Agent and (iv) deliver prior to the Administrative Discharge of ABL Obligations, the ABL Agent executed DDA Notifications (as such term is defined in the Guarantee and Collateral Intercreditor Agreement) or, thereafter, the Agent or (B) in the case of any Securities Account not constituting ABL Priority Collateral, the Agent, in each case a control agreement with respect to such Securities Account granting “control” (within the meaning of the UCC) over such Securities Account to the Agent or ABL Agent, as applicable; provided that, prior to the Discharge of ABL Obligations, no Grantor shall be required to be provided grant “control” over any such Securities Account constituting ABL Priority Collateral if such Grantor is not required to grant such “control” to the ABL Agent. To the extent that a Grantor is required pursuant to the first sentence of this Section 6.4 6(c)(iii) to grant “control” over any Securities Account prior to the Discharge of ABL Obligations, such requirements shall be deemed satisfied with respect to any Securities Account constituting ABL Priority Collateral so long as the ABL Agent is a party to a control agreement granting “control” (within the meaning of the Guarantee and Collateral Agreement. In connection UCC) with respect to such Securities Account to the ABL Agent; provided that upon the Discharge of ABL Obligations each Grantor shall cooperate with the foregoing, the Borrower shall, if requested by the Administrative ABL Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower each securities and the other Loan Parties, in form and substance reasonably satisfactory commodities intermediary to the Administrative have each control agreement assigned to Agent and covering customary matters relating to such control and access agreementsor replaced with a substantially similar agreement.
(b) The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts (other than (i) 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) 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 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 (ii) above shall at any time of determination exceed $1,000,000, the 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; provided, however, that the Borrower shall have 90 days after the Closing Date (or such later date as the Administrative Agent shall agree in its Permitted Discretion) to obtain such Deposit Account Control Agreements or other appropriate control agreements.
Appears in 1 contract
Control Agreements. (a) The Company will, and the Company will cause each applicable Loan Party to, (i) Enter enter into the Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the Guarantee Security Agreement and Collateral Agreement, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, (iii) enter into the Collateral 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 Agent, in each case no later than the date that is 60 days after the Effective Date (iv) deliver to or such later date as the Administrative Agent executed DDA Notifications (as defined shall agree in the Guarantee and Collateral Agreement) required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreementits Permitted Discretion). In connection with the foregoing, the Borrower Company shall, if requested by the Administrative Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower Company and the other Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and covering customary matters relating to such control and access agreementsDeposit Account Control Agreements.
(b) The Borrower Company shall determine the aggregate balance of cash and Cash Equivalents Permitted Investments of all Loan Parties in accounts (other than (i) 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) 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 zero, (iii) each Deposit Account used account, all the cash and Permitted Investments contained in which are subject to a Lien permitted under Section 6.02(h), (iv) each account, all the ordinary course cash and Permitted Investments contained in which are subject to a Lien pursuant to Section 6.02(s) to cash collateralize obligations under letters of business for local store accounts credit or in respect of Banking Services Obligations and (v) each account, all the cash and Permitted Investments contained in which shall be governed by Section 6.4 consist of proceeds of the Guarantee and Collateral Agreementissuance of any Debt Securities pursuant to Section 6.01(b),
6.01 (r) or 6.01(g) (solely to the 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 Term Debt Priority Collateral, in each case, to the extent depositing such cash or Permitted Investments in such account is required pursuant to the Senior Secured Notes Documents) 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 Company delivers Borrowing Base reports pursuant to Section 6.2(g5.01(f), and if such aggregate balance under clause (ii) above shall at any time of determination exceed $1,000,00010,000,000, the Borrower Company 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; provided, however, that the Borrower Company shall have 90 60 days after the Closing Effective Date (or such later date as the Administrative Agent shall agree in its Permitted Discretion) to obtain such Deposit Account Control Agreements or other appropriate control agreements.
Appears in 1 contract
Control Agreements. (a) (i) Enter into the Deposit Account Control Agreements required With respect to be provided pursuant to Section 6.1 of the Guarantee and Collateral Agreement, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, (iii) enter into the Collateral 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 any Mortgage Asset or collateral for a Mortgage Asset that is an uncertificated security (as defined in the Guarantee and Collateral AgreementUCC), security entitlements (as defined in the UCC) required to be provided pursuant to Section 6.4 of or is held in a securities account (as defined in the Guarantee and Collateral Agreement. In connection with the foregoingUCC), the Borrower shall, if requested by the Administrative Agent, promptly deliver shall provide to the Administrative Agent a favorable written opinion control agreement, which shall be acceptable to the Administrative Agent in its discretion and shall be delivered to the Custodian under the Custodial Agreement, executed by the issuer of the Mortgage Asset or the collateral for the Mortgage Asset or the related securities intermediary (addressed as defined in the UCC), as applicable, granting control (as defined in the UCC) of such Mortgage Asset or collateral for such Mortgage Asset to the Administrative Agent and providing that, after an Event of Default, the Lenders) Administrative agent shall be entitled to notify the issuer or securities intermediary, as applicable, that such issuer or securities intermediary shall comply exclusively with the instructions or entitlement orders (as defined in the UCC), as applicable, of counsel for the Administrative Agent without the consent of the Borrower or any other Person and no longer follow the instructions or entitlement orders, as applicable, of the Borrower or any other Loan PartiesPerson (other than the Administrative Agent). All of the Borrowers’ right, title and interest in form and substance reasonably satisfactory the Mortgage Assets that constitute GKK CRE CDO Securities shall be pledged to the Administrative Agent and covering customary matters relating on the applicable Borrowing Date. The Borrowers shall deliver to such control and access agreements.
(b) The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts (other than (i) 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) 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 other appropriate control agreements in favor 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 substance reasonably satisfactory registration of such Mortgage Assets to the Administrative Agent at each time when as agent for the Borrower delivers Lenders no later than the proposed Borrowing Base reports pursuant Date for the relevant Mortgage Asset. All transfers of certificated securities from the Borrowers to Section 6.2(gthe 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 Borrower, in blank. With respect to Mortgage Assets that shall be delivered through the DTC or the National Book Entry System of the Federal Reserve or any similar firm or agency, as applicable, in book–entry form and if such aggregate balance under clause (ii) above shall at any time of determination exceed $1,000,000credited to or otherwise held in an account, the Borrower Borrowers shall promptly eliminate take such excess from such accounts or shall within 30 days enteractions necessary to provide instruction to the relevant financial institution, or cause the applicable Loan Parties to enterclearing corporation, into one or more Deposit Account Control Agreements securities intermediary or other appropriate control agreements entity to effect and perfect a legally valid delivery of the relevant interest granted herein to the Administrative Agent as agent for the Lenders hereunder to be held in favor the Securities Account. Mortgage Assets delivered in book–entry form shall be under the custody of and held in the name of the Administrative Agent as agent for the Lenders in form and substance reasonably satisfactory to the Administrative Agent so that there shall not thereafter be any such excess; provided, however, that the Borrower shall have 90 days after the Closing Date (or such later date as the Administrative Agent shall agree in its Permitted Discretion) to obtain such Deposit Account Control Agreements or other appropriate control agreementsSecurities Account.
Appears in 1 contract
Control Agreements. (a) (i) Enter into the Obligors agree that they will not transfer assets out of any of their Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the Guarantee and Collateral Agreement, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, (iii) enter into the Collateral 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. In connection with the foregoing, the Borrower shall, if requested by the Administrative Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and covering customary matters relating to such control and access agreements.
(b) The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts (other than (i) 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 Accounts or taxes related thereto, (ii) 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 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 (ii) above shall at any time of determination exceed $1,000,000, the 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 excessSecurities Accounts; provided, however, that (i) any Obligor may make any such transfer if immediately thereafter, the Borrower shall have 90 days 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 Closing Date Discharge of Credit Obligations (or such later date unless otherwise permitted under Section 2.7(b)), so long as the Administrative Agent shall 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 its Permitted Discretion) order for Trustee to obtain such control in accordance with Sections 8-106, 9-104, 9-105, 9-106, and 9-107 of the Code with respect to any of its or their Securities Accounts, Deposit Accounts, electronic chattel paper, Investment Property, and letter-of-credit rights. No Control Agreement in respect of any Securities Accounts or other Investment Property shall be modified by Obligors without the prior written consent of Trustee. 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 Account or Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to an account designated by the Trustee for the applicable Obligor; provided that, notwithstanding anything in any Financing Document to the contrary, Trustee agrees that it shall not give any bank or securities intermediary written notice instructing such bank or securities intermediary to cease honoring the applicable Obligor’s instructions unless and until an Event of Default has occurred and is continuing.
(b) After the Discharge of Credit Agreement Obligations, Obligors shall not have Permitted Investments (other than Cash Management 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 Obligor and the applicable securities intermediary or bank have entered into Control Agreements or other appropriate control agreementssimilar arrangements governing such Permitted Investments in order to perfect (and further establish) the Trustee’s Liens in such Permitted Investments.
Appears in 1 contract
Samples: Security Agreement (SMART Modular Technologies (DE), Inc.)
Control Agreements. (a) (i) Enter into the Borrower agrees that it will not, and will not permit its Subsidiaries to, transfer assets out of any of their Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the Guarantee and Collateral Agreement, (ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, (iii) enter into the Collateral 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. In connection with the foregoing, the Borrower shall, if requested by the Administrative Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and covering customary matters relating to such control and access agreements.
(b) The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts Accounts (other than (ias specified in Section 2.7 with respect to Cash Management Accounts) 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) 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 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 (ii) above shall at any time of determination exceed $1,000,000, the 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 excessSecurities 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 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 shall have 90 days after the Closing Date (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 arrangement contemplated hereby or by any Control Agreement in respect of any Securities Accounts or other Investment Property shall be modified by Borrower without the prior written consent of Agent. 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 Account (including pursuant to Section 2.7(c) with respect to Cash Management Accounts) or Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to the Agent’s Account or as otherwise directed by Agent.
(b) Borrower agrees that, subject to Section 2.7 (with respect to Cash Management Accounts) and Section 7.12 with respect to all other Deposit Accounts and Securities Accounts, it 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 Code with respect to any of (i) its or their Securities Accounts, Deposit Accounts, electronic chattel paper, Investment Property, and (ii) only during a Triggering Period, pursuant to any such later date as the Administrative Agent shall agree reasonable (in its Agent's 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 Deposit control with respect to the Special Account Control Agreements or other appropriate control agreementsand Securities Investments.
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Control Agreements. (a) Each of Holdings and Parent Borrower shall, and shall cause each other Credit Party to (i) Enter enter into the Deposit Account Control Agreements required with respect to be provided pursuant to Section 6.1 each deposit account, securities account and commodities account maintained by Holdings, Parent Borrower or any such Credit Party as of or after the Guarantee and Collateral AgreementClosing Date, (ii) enter into the Local Blocked Account Agreements required deposit in a deposit account subject to be provided pursuant to Section 6.4 of the Guarantee a Control Agreement all cash received on each Business Day and Collateral Agreement, (iii) enter into the Collateral Access Agreements required not establish or maintain any deposit account, securities account or commodities account unless such deposit account, securities account or commodities account is subject to be a Control Agreement as provided pursuant to in Section 5.13 of the Guarantee and Collateral Agreement3.14, in each case, other than (A) any payroll account so long as such payroll account is a zero balance account, (iiiB) open any disbursement account so long as the Collection Account with 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 Administrative Agent balance of withholding tax, trust and other fiduciary accounts and (ivD) deliver xxxxx cash accounts not to the Administrative Agent executed DDA Notifications (as defined have more than $50,000 on deposit in the Guarantee and Collateral Agreement) required to aggregate at any time. Each such Control Agreement shall be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement. In connection with the foregoing, the Borrower shall, if requested by the Administrative Agent, promptly deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to the Administrative Decision Agent and covering customary matters relating to such (it being understood that the control and access agreements.
(b) The Borrower shall determine agreements of the aggregate balance of cash and Cash Equivalents of all Loan Credit Parties in accounts (other than (i) 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) 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 place as of the Guarantee Restatement Effective Date are in form and Collateral Agreementsubstance reasonably satisfactory)) not subject . Each Credit Party shall enter into and maintain with one or more banks and pursuant 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 Decision Agent, lock box arrangements.
(b) Each of Holdings and Parent Borrower delivers Borrowing Base reports pursuant to Section 6.2(g)shall, and if such aggregate balance shall cause each Credit Party, to (i) direct each Account Debtor or other Person obligated to make a payment to any of them under clause any Account or General Intangible to make payment to the applicable Credit Party directly to a lockbox account or other deposit account subject to a Control Agreement and (ii) above deposit in a deposit account or securities account (as applicable) subject to a Control Agreement promptly (but in any 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 any such Credit Party from any other Person.
(c) Notwithstanding anything to the contrary in the foregoing clauses (a) or (b), it is understood and agreed that:
(i) Agent shall not deliver a notice of control or other similar notice to any depository institution, securities intermediary or commodities intermediary, as applicable, pursuant to 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 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 determination exceed the Revolving Loan Commitments of all Lenders then in effect; and
(ii) if an Event of Default shall be continuing or Excess Availability is less than (x) for five (5) consecutive Business Days the greater of (A) 12.5% of the aggregate Revolving Loan Commitments then in effect and (B) $1,000,00035.0 million or (y) at any time 10% of the Revolving Loan Commitments of all Lenders then in effect, and, in each case, a control notice or similar notice has been given by Agent in accordance with the Borrower shall promptly eliminate such excess from such applicable Control Agreement and the immediately preceding clause (i), amounts deposited in or credited to deposit accounts, securities accounts or shall within 30 days enter, or cause the applicable Loan Parties commodities accounts subject 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 credited to the Administrative Agent so that there lock-box account will be transferred on a daily basis to the Concentration Account and shall not thereafter be any such excess; provided, however, that available to the Borrower shall have 90 days after the Closing Date (or such later date as the Administrative Agent shall agree in its Permitted Discretion) to obtain such Deposit Account Control Agreements or other appropriate control agreementsapplicable Credit Party.
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