Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable. (b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank. (c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations. (d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof. (e) If any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(a) and 4.6(b)) exceeding in value $1,000,000 in the aggregate (such Collateral exceeding such amount, the “Stored Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x), such Grantor shall notify such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment to hold all such Collateral for the benefit of the Administrative Agent subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, warehouse receipts, bills of lading or any similar documents relating to such Collateral, together with an Effective Endorsement and Assignment. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
Appears in 2 contracts
Samples: Credit Agreement (Imation Corp), Credit Agreement (Imation Corp)
Control Covenants. (a) To further secure Upon the prompt payment and performance request of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for Agent (i) at any time with respect to all Material Deposit Accounts and all Proceeds Investment Property and (ii) at any time following the benefit occurrence and during the continuance of an Event of Default with respect to all other Deposit Accounts of the Secured PartiesGrantors, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (iA) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (iiB) each Securities Intermediary holding any Proceeds Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, ” and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”)) within thirty (30) Business Days of such request. In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Proceeds Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereofFollowing any such request, all Deposit Accounts (other than Excluded Deposit Accounts) and all Proceeds Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository Depositary or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement If (in form and substance satisfactory to the Administrative Agenti) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(e) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and 4.6(b)) exceeding in value $1,000,000 10,000,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any such time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party party, or is stored at any location which is not owned by the Grantors or (other than ii) if an Approved Consignee with a credit rating Event of BB+ Default shall have occurred and be continuing, then (or bettera) with S&P and Ba1 (or better) with Xxxxx’x), the Administrative Agent may require that that such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Agent’s account subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral together with an Effective Endorsement and Assignment. FurtherAssignment (which documents may include, within ninety without limitation, lien subordinations of such third parties and, in the case of leased locations, landlord agreements, in each case, in form and substance reasonably acceptable to the Administrative Agent); provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby; and (90b) days of the date hereof, Administrative Agent may require that each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c4.6(b) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of itself and the Secured Partiesother Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Tuesday Morning Corp/De), Credit Agreement (Tuesday Morning Corp/De)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor Grantor, and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent Secured Party with Control of such Deposit Account or Investment Property Property, and otherwise in form and substance reasonably satisfactory to the Administrative Agent Secured Party (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative AgentSecured Party, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent Secured Party or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent Secured Party to provide the Administrative Agent Secured Party with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent Secured Party identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 5,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Secured Party’s account subject to the Administrative AgentSecured Party’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Secured Party warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Secured Party’s together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Secured Party, in its sole discretion, may require such Excess Collateral to be moved to another location specified by the Secured Party. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured PartiesParty.
Appears in 2 contracts
Samples: Collateral Agreement (Ucn Inc), Collateral Agreement (Lapolla Industries Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary bank (other than the Administrative Collateral Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Collateral Agent with Control of such Deposit Account or Investment Property Property, and otherwise in form and substance reasonably satisfactory to the Administrative Collateral Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Collateral Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Collateral Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Collateral Agent to provide the Administrative Collateral Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Collateral Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(aSection 4.06(a) and 4.6(bSection 4.06(b)) exceeding in value $1,000,000 500,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall promptly notify the Collateral Agent thereof and, upon request of the Collateral Agent, notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Collateral Agent’s account subject to the Administrative Collateral Agent’s instructions, and if requested by the Administrative Agent shall use commercially its reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Collateral Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Collateral Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c4.06(c) shall be assigned, on the face thereof, to the Administrative Collateral Agent, for the ratable benefit of itself and the other Secured Parties.
Appears in 2 contracts
Samples: First Lien Collateral Agreement (Global Geophysical Services Inc), First Lien Collateral Agreement (Global Geophysical Services Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent (or, subject to the terms of the Intercreditor Agreement, the Revolving Loan Administrative Agent, as applicable) with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (or Revolving Loan Administrative Agent, as applicable) (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent (or Revolving Loan Administrative Agent, as applicable), in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent (or, subject to the terms of the Intercreditor Agreement, the Revolving Loan Administrative Agent, as applicable) or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit request of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such each Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent (or, subject to the terms of the Intercreditor Agreement, the Revolving Loan Administrative Agent, as applicable) with Control of (i) all Letter of Credit Rights with a principal amount in excess of $250,000, individually, and $500,000, in the aggregate and (ii) all Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel PaperPaper with a value in excess of $250,000, in the aggregate, in each case by having the Administrative Agent (or Revolving Loan Administrative Agent, as applicable) identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 250,000 in the aggregate (such Collateral exceeding such amount, the “Stored Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall promptly notify such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment to hold all such Collateral for the benefit of the Administrative Agent subject to in writing. Promptly upon the Administrative Agent’s instructionsrequest, and if requested by such Grantor shall deliver to the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver (or, subject to the Grantorterms of the Intercreditor Agreement, who shall promptly delver to the Revolving Loan Administrative Agent, warehouse receiptsas applicable) a Control Access Agreement duly authorized, bills of lading or any similar documents relating to executed and delivered by such Collateral, together with an Effective Endorsement person and Assignment. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
Appears in 2 contracts
Samples: Credit Agreement (Hhgregg, Inc.), Collateral Agreement (Hhgregg, Inc.)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary bank (other than the Administrative Collateral Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Collateral Agent (or, prior to the Discharge of First Lien Obligations, the First Lien Administrative Agent Agent, acting as gratuitous bailee of the Collateral Agent) with Control of such Deposit Account or Investment Property Property, and otherwise in form and substance reasonably satisfactory to the Administrative Collateral Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Collateral Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Collateral Agent (or, prior to the Discharge of First Lien Obligations, to the First Lien Administrative Agent Agent, acting as gratuitous bailee of the Collateral Agent) or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Collateral Agent to provide the Collateral Agent (or, prior to the Discharge of First Lien Obligations, to the First Lien Administrative Agent Agent, acting as gratuitous bailee of the Collateral Agent) with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Collateral Agent (or, prior to the Discharge of First Lien Obligations, the First Lien Administrative Agent Agent, acting as gratuitous bailee of the Collateral Agent) identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(aSection 4.06(a) and 4.6(bSection 4.06(b)) exceeding in value $1,000,000 500,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall promptly notify the Collateral Agent thereof and, upon request of the Collateral Agent, notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit Collateral Agent’s account (or, prior to the Discharge of First Lien Obligations, for the account of the First Lien Administrative Agent Agent, acting as gratuitous bailee of the Collateral Agent) subject to the Collateral Agent’s instructions (or, prior to the Discharge of First Lien Obligations, subject to the instructions of the First Lien Administrative Agent’s instructions, acting as gratuitous bailee of the Collateral Agent), and if requested by the Administrative Agent shall use commercially its reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Collateral Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Collateral Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c4.06(c) shall be assigned, on the face thereof, to the Administrative Collateral Agent, for the ratable benefit of itself and the other Secured Parties.
Appears in 2 contracts
Samples: Second Lien Collateral Agreement (Global Geophysical Services Inc), Second Lien Collateral Agreement (Global Geophysical Services Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than an Excluded Investment PropertySecurities Account) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “"Controlled Depositary”", and any such Securities Intermediary executing and delivering any such control agreement, a “"Controlled Intermediary”"). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and or Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 500,000 in the aggregate (such Collateral exceeding such amount, the “Stored "Excess Collateral”") is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s 's written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Agent's account subject to the Administrative Agent’s 's instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Administrative Agent's Office together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s 's ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s 's interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of itself and the other Secured Parties.
Appears in 1 contract
Samples: Credit Agreement (Lmi Aerospace Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded a Deposit AccountsAccount that is not a Material Account) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded a Deposit AccountsAccount that is not a Material Account) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to . All costs and expenses incurred in connection with the Administrative Agent. The Grantors shall obtain an agreement (in form establishment and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights maintenance of such servicer Deposit Accounts, Investment Property, control agreements, or bank, except transfers of funds or Investment Property therefrom and thereto shall be for customary administrative charges the account of the Grantors. So long as no Event of Default shall have occurred and returned items. If a Dominion Account is not maintained with Bank of America, be continuing and the Administrative Agent mayshall not have delivered notice to the contrary to the applicable Controlled Depositary or Controlled Intermediary, the Grantors shall have the right to collect, withdraw and direct the disposition of funds or Investment Property on deposit in the Deposit Account or Securities Accounts covered by the control agreements in a manner not in violation of the provisions of this Agreement, such control agreements or any of the other Loan Documents; provided, however, that upon the occurrence and during any Cash Dominion Trigger Period, require immediate transfer the continuance of all funds in such account to a Dominion Account maintained with Bank an Event of America. The Default and after notice from the Administrative Agent and to the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement applicable Controlled Depository or Dominion AccountControlled Intermediary, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole exclusive dominion and control of over all such Deposit Accounts and Investment Property, with the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such powers and rights granted herein and in the applicable control agreement with respect thereto, and no Grantor shall have any right to collect, withdraw or direct the disposition of funds or Investment Property on deposit in such Deposit Accounts or Securities Accounts or to take any Cash Collateral, until Full Payment of all Secured Obligationsaction to effect the same.
(db) Such Upon the request of the Administrative Agent, each Grantor will take such actions and deliver all such agreements as are reasonably requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Rights, Electronic Chattel Paper owned or held by such Grantor, including, without limitation, including with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof, and any other Collateral in which a security interest may be perfected by Control under the UCC.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 100,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of and subject to the Security Interests of the Administrative Agent and subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Administrative Agent together with an Effective Endorsement and AssignmentAssignment and a waiver and release of any Lien (whether arising by operation of law or otherwise) it may have with respect to such Collateral; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of itself and the other Secured Parties.
(d) As to all real estate leased by any Grantor that is the chief executive office of any Grantor or where any books and records relating to Collateral are kept, located in a jurisdiction which provides for liens of landlords imposed by statute, such Grantor shall use commercially reasonable efforts to obtain waivers from the landlords of all such real estate, in form and content reasonably acceptable to the Administrative Agent.
Appears in 1 contract
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (instruct, and otherwise use its commercially reasonable efforts to cause) , (i) each depositary bank (other than the Administrative Agent unless requested by the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) or a Securities Account owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Account, Investment Property or Securities Account, as the case may be, and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”), within twenty Business Days following any request thereof by the Administrative Agent (or, solely with respect to the Specified Investment Account and the Specified BoA Accounts, within 60 days of the Restatement Effective Date); provided that, notwithstanding the foregoing, no Grantor shall be required to obtain a control agreement with respect to any Specified Deposit Account. In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreementagreement (or otherwise grant or provide the Administrative Agent Control over the relevant Deposit Account, Investment Property or Securities Account in a manner and pursuant to documentation satisfactory to the Administrative Agent), the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereofFollowing any such request and except as set forth above, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository Depositary or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Letter-of-Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) No Grantor will change the depositary bank or account number of the Collection Account or permit any payments or proceeds of any Material Government Contracts to be directed by such Governmental Authority to an account other than the Collection Account, except upon twenty (or such lesser number as the Administrative Agent shall agree in its sole discretion) Business Days’ prior written notice to the Administrative Agent and delivery to the Administrative Agent of (i) all additional financing statements or amendment filings (executed if necessary for any particular filing jurisdiction) and other instruments and documents reasonably requested by the Administrative Agent to maintain the validity, perfection and priority of the Security Interests, (ii) if applicable, a written supplement to Schedule 3.9 if any Grantor acquires ownership of a Deposit Account after the date hereof, and (iii) a control agreement, executed by such Grantor and such depositary bank and in form and substance satisfactory to the Administrative Agent, granting the Administrative Agent Control of the Collection Account.
(d) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 250,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Agent’s account subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory Inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All Upon the Administrative Agent’s request, all such financing statements filed pursuant to this Section 4.6(c4.6(d) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of itself and the other Secured Parties.
(e) The Administrative Agent will cause to be established at a banking institution to be selected by the Administrative Agent a cash collateral account (the “Collateral Account”), that
(i) to the extent of all Investment Property or Financial Assets (other than cash) credited thereto shall be a Securities Account in respect of which the Administrative Agent shall be the Entitlement Holder,
(ii) to the extent of any cash credited thereto shall be a Deposit Account in respect of which the Collateral Agent shall be the depository bank’s customer, and
(iii) into which each Grantor agrees to deposit from time to time the cash proceeds of any of the Collateral (including proceeds of insurance thereon) required to be delivered to the Administrative Agent pursuant to any of the Loan Documents, or pursuant hereto, and into which any Grantor may from time to time deposit any additional amounts that it wishes to provide as additional collateral security hereunder. The Collateral Account, and any money or other property from time to time therein, shall constitute part of the Collateral hereunder and shall not constitute payment of the Obligations until applied as hereinafter provided.
(f) Each Issuer hereby agrees that if at any time such Issuer issues or shall have issued any Uncertificated Securities constituting Collateral to any Grantor, such Issuer shall comply with any “instruction” (as defined in Section 8-102 of the UCC) originated by the Administrative Agent and relating to such Uncertificated Securities without further consent by such Grantor or any other Person, and each such Grantor hereby consents to the foregoing agreement by each such Issuer; provided, that the Administrative Agent shall not issue any such instructions without the consent of such Grantor unless an Event of Default shall have occurred and be continuing.
Appears in 1 contract
Samples: Credit Agreement (Geo Group Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit written request of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such each Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of on the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(a) and 4.6(b)) ), exceeding in value $1,000,000 100,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other party, for a period of more than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)30 days, such Grantor shall notify such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment to that, upon notice from the Administrative Agent that an Event of Default has occurred and is continuing, it shall hold all such Collateral for the benefit of the Administrative Agent subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use its commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
Appears in 1 contract
Samples: Credit Agreement (Diamond Foods Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary depository bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Collateral Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Collateral Agent (any such depositary depository bank executing and delivering any such control agreement, a “Controlled DepositaryDepository”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary depository bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Collateral Agent, in its sole discretion, may require the applicable Deposit Account (other than Excluded Deposit Accounts) and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary Depository or Controlled Intermediary, as applicable. After Within sixty (60) days of the Closing Date (or such later date hereofas consented to by the Collateral Agent in its reasonable discretion), all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable, unless otherwise permitted by the Collateral Agent.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to request of the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Collateral Agent to provide the Administrative Collateral Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Collateral Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(aSection 5.6(a) and 4.6(bSection 5.6(b)) exceeding with a value in value excess of $1,000,000 50,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment in writing to hold all such Collateral for the benefit of the Administrative Collateral Agent subject to the Administrative Collateral Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Collateral Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Collateral Agent together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Collateral Agent, subject to approval of the Required Holders, not to be unreasonably withheld, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each such Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC or any Requirements of Law to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory Inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwiseotherwise under any Requirements of Law. All such financing statements filed pursuant to this Section 4.6(c5.6(c) shall be assigned, on the face thereof, assigned to the Administrative Collateral Agent, for the ratable benefit of itself and the Secured Partiesother Holders.
Appears in 1 contract
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded the Investment PropertyProperty subject to the Liens identified on Schedule 7.02 of the Credit Agreement) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, (A) may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicableapplicable or (B) determine that such Deposit Account or Investment Property need not be subject to a control agreement and, with respect to Deposit Accounts, deemed an Excluded Account; provided, that in conjunction with any such determination under this item (B), such Deposit Account or Investment Property shall be subject to an aggregate maximum dollar limitation or balance to be determined by the Administrative Agent at such time. After the date hereofhereof and subject to the provisions of the foregoing sentence, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit request of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(a) and 4.6(b)) exceeding in value $1,000,000 in the aggregate is (such Collateral exceeding such amount, the “Stored Collateral”i) is located on property leased by a Grantor or (ii) at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall shall, with respect to Section 4.6(c)(i), obtain landlord waiver and/collateral access agreements, and with respect to Section 4.6(c)(ii), notify such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment to hold all such Collateral for the benefit of the Administrative Agent subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, warehouse receipts, bills of lading or any similar documents relating to such Collateral, together with an Effective Endorsement and Assignment; provided, that in each of the foregoing cases, that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, (A) may require CHL:64157.6 such Collateral to be moved to another location specified thereby or (B) determine that no landlord waiver, warehouseman’s letter or the like is required; provided, that in conjunction with any such determination under this item (B), such collateral located at the location in question shall be limited to an aggregate maximum dollar limitation determined by the Administrative Agent at such time. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
Appears in 1 contract
Samples: Collateral Agreement (Heartland Payment Systems Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) or a Securities Account owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Account, Investment Property or Securities Account, as the case may be, and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”), subject to Section 5.11(d) of the Credit Agreement, within twenty (20) Business Days following any request thereof by the Administrative Agent; provided that, notwithstanding the foregoing, no Grantor shall be required to obtain a control agreement with respect to: (x) Deposit Accounts established solely as prisoner trust accounts, (y) Deposit Accounts established solely for the purpose of funding payroll and other compensation and benefits to employees and (z) so long as no Default has occurred and is continuing, Deposit Accounts (other than as provided in Section 4.8(d)) with amounts on deposit that, when aggregated with the amounts on deposit in all other Deposit Accounts for which a control agreement has not be obtained (other than those specified in clauses (x) and (y) of this Section 4.6(a)), do not exceed $1,000,000 at any time). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereofFollowing any such request and except as set forth above, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Letter-of-Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) No Grantor will change the depositary bank or account number of the Collection Account or permit any payments or proceeds of any Material Government Contracts to be directed by such Governmental Authority to an account other than the Collection Account, except upon twenty (20) Business Days’ prior written notice to the Administrative Agent and delivery to the Administrative Agent of (i) all additional financing statements (executed if necessary for any particular filing jurisdiction) and other instruments and documents reasonably requested by the Administrative Agent to maintain the validity, perfection and priority of the Security Interests, (ii) if applicable, a written supplement to Schedule 3.9 if any Grantor acquires ownership of a Deposit Account after the date hereof, and (iii) a control agreement, executed by such Grantor and such depositary bank and in form and substance satisfactory to the Administrative Agent, granting the Administrative Agent Control of the Collection Account.
(d) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 150,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Agent’s account subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory Inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c4.6(d) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of itself and the other Secured Parties.
(e) The Administrative Agent will cause to be established at a banking institution to be selected by the Administrative Agent a cash collateral account (the “Collateral Account”), that
(i) to the extent of all Investment Property or Financial Assets (other than cash) credited thereto shall be a Securities Account in respect of which the Administrative Agent shall be the Entitlement Holder,
(ii) to the extent of any cash credited thereto shall be a Deposit Account in respect of which the Collateral Agent shall be the depository bank’s customer, and
(iii) into which each Grantor agrees to deposit from time to time the cash proceeds of any of the Collateral (including proceeds of insurance thereon) required to be delivered to the Administrative Agent pursuant to any of the Loan Documents, or pursuant hereto, and into which any Grantor may from time to time deposit any additional amounts that it wishes to provide as additional collateral security hereunder. The Collateral Account, and any money or other property from time to time therein, shall constitute part of the Collateral hereunder and shall not constitute payment of the Obligations until applied as hereinafter provided.
Appears in 1 contract
Samples: Credit Agreement (Geo Group Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor Grantor, and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, in each case to the extent constituting part of the Collateral, to execute and deliver a control agreement, sufficient to provide the Administrative Collateral Agent with Control of such Deposit Account or Investment Property Property, and otherwise in form and substance reasonably satisfactory to the Administrative Collateral Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, ,” and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Collateral Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Collateral Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Collateral Agent to provide the Administrative Collateral Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such GrantorGrantor and constituting part of the Collateral, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Collateral Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 100,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Collateral Agent’s account subject to the Administrative Collateral Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Collateral Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Collateral Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified by the Collateral Agent. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Collateral Agent, for the ratable benefit of the Secured Parties.
Appears in 1 contract
Control Covenants. (a) To further secure Promptly following the prompt payment in full of the Senior Obligations and performance termination of all Secured Obligationslending commitments under the Loan Agreement, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such each Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor Grantor, and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent Secured Party with Control of such Deposit Account or Investment Property Property, and otherwise in form and substance reasonably satisfactory to the Administrative Agent Secured Party (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative AgentSecured Party, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent Secured Party or a different Controlled Depositary or Controlled Intermediary, as applicable. After , reasonably selected by the date hereofGrantor and reasonably satisfactory to the Secured Party, all Deposit Accounts (other than Excluded Deposit Accounts) which agrees to execute and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicabledeliver such control agreement.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Promptly following the Administrative Agent. The Grantors shall obtain an agreement (payment in form full of the Senior Obligations and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit termination of all remittances received in lending commitments under the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Loan Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such each Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent Secured Party to provide the Administrative Agent Secured Party with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent Secured Party identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 5,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall and shall, if the Senior Obligations have been paid in full and all lending commitments under the Loan Agreement have been terminated, (i) use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Secured Party’s account subject to the Administrative AgentSecured Party’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to (ii) cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Secured Party warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Secured Party together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Secured Party, in its sole discretion, may require such Excess Collateral to be moved to another location specified by the Secured Party. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured PartiesParty.
Appears in 1 contract
Samples: Subordinated Collateral Agreement (General Environmental Management, Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “"Controlled Depositary”", and any such Securities Intermediary executing and delivering any such control agreement, a “"Controlled Intermediary”"). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(e) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and 4.6(b)) exceeding in value $1,000,000 in the aggregate aggregate, as determined on the Closing Date and on each fiscal quarter end thereafter (such Collateral exceeding such amount, the “Stored "Excess Collateral”) "), is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s 's written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Agent's account subject to the Administrative Agent’s 's instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Administrative Agent's office together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s 's ownership interests in all such Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s 's interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC DCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c4.6(b) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
Appears in 1 contract
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled DepositaryDepository”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary Depository or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit request of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such each Grantor will take such actions and deliver all such agreements as are reasonably requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Letter-of-Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment in writing to hold all such Collateral for the benefit of the Administrative Agent subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of unless otherwise agreed to in writing by the date hereofAdministrative Agent, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, assigned to the Administrative Agent, for the ratable benefit of the Secured Parties.
Appears in 1 contract
Samples: Collateral Agreement (Consolidated Communications Holdings, Inc.)
Control Covenants. (a) To further secure Commencing no later than (30) days after the prompt payment and performance of all Secured Obligationsdate hereof, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Grantor Borrower shall instruct (and otherwise use its commercially reasonable efforts to cause) cause (i) each depositary depository bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor Borrower and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such GrantorBorrower, to execute and deliver a control agreement, sufficient to provide the Administrative Agent Lender with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent Lender (any such depositary depository bank executing and delivering any such control agreement, a “Controlled DepositaryDepository”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms request of the Credit AgreementLender, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor Borrower will take such actions and deliver all such agreements as are requested by the Administrative Agent Lender to provide the Administrative Agent Lender with Control of all Letter of Credit Rights and Electronic Chattel Paper with a value in excess of Fifty Thousand Dollars ($50,000) owned or held by such GrantorBorrower, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent Lender identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If Commencing no later than thirty (30) days after the date hereof, if any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(aSection 5.07(a) and 4.6(bSection 5.07(b)) exceeding with a value in value excess of $1,000,000 100,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor Borrower shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment in writing to hold all such Collateral for the benefit of the Administrative Agent Lender subject to the Administrative AgentLender’s instructions, and if requested by the Administrative Agent shall use its commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Lender warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Lender together with an Effective Endorsement and Assignment; provided that if Borrower is not able to obtain such agreement and cause the delivery of such items. Further, within ninety (90) days of the date hereof, each Grantor Borrower shall use commercially reasonable efforts to perfect and protect such GrantorBorrower’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC or any Requirements of Law to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such GrantorBorrower’s interests in such inventory Inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwiseotherwise under any Requirements of Law. All such financing statements filed pursuant to this Section 4.6(c5.07(c) shall be assigned, on the face thereof, assigned to the Administrative Agent, for the ratable benefit of the Secured PartiesLender.
Appears in 1 contract
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are reasonably requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Letter-of-Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 50,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Agent’s account subject to the Administrative Agent’s instructions; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, warehouse receiptsin its sole discretion, bills of lading or any similar documents relating may require such Excess Collateral to such Collateral, together with an Effective Endorsement and Assignmentbe moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of itself and the other Secured Parties.
Appears in 1 contract
Control Covenants. (ai) To further secure Upon the prompt payment and performance request of all Secured Obligations, such Grantor hereby grants to the Administrative AgentAgent upon the occurrence and during the continuance of an Event of Default, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (ix) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accountsexcluding any Medicare/Medicaid Receivables Account) owned by such Grantor and (iiy) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “"Controlled Depositary”", and any such Securities Intermediary executing and delivering any such control agreement, a “"Controlled Intermediary”)") within five (5) Business Days of such request. In the event No Grantor shall permit any payments or other funds other than Medicare/Medicaid Receivables paid directly to such depositary bank or Securities Intermediary refuses Grantor pursuant to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Medicare Provider Agreement or Medicaid Provider Agreement to be deposited into any Medicare/Medicaid Receivables Account. Each Grantor shall cause all funds held in any Medicare/Medicaid Receivables Account and Investment Property to be transferred to a Deposit Account at a Controlled Depository on a weekly basis unless the Administrative Agent requests, or this Agreement otherwise requires, a Controlled Depositary or Controlled Intermediary, as applicable. After more frequent transfer following an Event of Default.
(ii) Notwithstanding any of the date provisions hereof, all the applicable Grantors shall cause the Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will that are identified as comprising the existing cash management system with Bank of America, N.A. on Schedule 3.10 hereof to be maintained with subject to a control agreement, sufficient to provide the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicableControl of such Deposit Account and otherwise in form and substance reasonably satisfactory to the Administrative Agent.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are reasonably requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(aSection 4.06(a) and 4.6(bSection 4.06(b)) exceeding in value $1,000,000 50,000 in the aggregate (such Collateral exceeding such amount, the “Stored "Excess Collateral”") is at any time in the possession or control of any single consignee, warehouseman, bailee (other than (i) a carrier transporting Inventory to a purchaser in the ordinary course of business), a processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall promptly notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s 's written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Agent's account subject to the Administrative Agent’s 's instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Administrative Agent's together with an Effective Endorsement and Assignment. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
Appears in 1 contract
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to extent requested by the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “"Controlled Depositary”", and any such Securities Intermediary executing and delivering any such control agreement, a “"Controlled Intermediary”"). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 100,000 in the aggregate (such Collateral exceeding such amount, the “Stored "Excess Collateral”") is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s 's written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Agent's account subject to the Administrative Agent’s 's instructions; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, warehouse receiptsin its sole discretion, bills of lading or any similar documents relating may require such Excess Collateral to such Collateral, together with an Effective Endorsement and Assignmentbe moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s 's ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s 's interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of itself and the Secured Partiesother Lenders.
Appears in 1 contract
Samples: Collateral Agreement (Cross Country Healthcare Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor Grantor, and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent Secured Party with Control of such Deposit Account or Investment Property Property, and otherwise in form and substance reasonably satisfactory to the Administrative Agent Secured Party (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative AgentSecured Party, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent Secured Party or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent Secured Party to provide the Administrative Agent Secured Party with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent Secured Party identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 25,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating full-time employee of BB+ (such Grantor), or better) with S&P and Ba1 (to the extent that the aggregate of such Collateral in the possession or better) with Xxxxx’x)control of such Persons exceeds in value $250,000 in the aggregate, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Secured Party’s account subject to the Administrative AgentSecured Party’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Secured Party warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Secured Party’s together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Secured Party, in its sole discretion, may require such Excess Collateral to be moved to another location specified by the Secured Party. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured PartiesParty.
Appears in 1 contract
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) instruct (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After Forty-five (45) days (or such other number of days to which the Administrative Agent may agree) after the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit request of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such each Grantor will take such actions and deliver all such agreements as are reasonably requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) of any Grantor is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’xat any location that is not set forth on Schedule 3.6(c), such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment in writing to hold all such Collateral for the benefit of the Administrative Agent subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, assigned to the Administrative Agent, for the ratable benefit of the Secured Parties.
Appears in 1 contract
Samples: Collateral Agreement (Blackhawk Network Holdings, Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor Grantor, and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent Secured Party with Control of such Deposit Account or Investment Property Property, and otherwise in form and substance reasonably satisfactory to the Administrative Agent Secured Party (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”"CONTROLLED DEPOSITARY", and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”"CONTROLLED INTERMEDIARY"). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative AgentSecured Party, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent Secured Party or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bankEach Grantor will, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit promptly upon request of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured ObligationsParty, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent Secured Party to provide the Administrative Agent Secured Party with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent Secured Party identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 100,000 in the aggregate (such Collateral exceeding such amount, the “Stored Collateral”"EXCESS COLLATERAL") is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s 's written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Secured Party's account subject to the Administrative Agent’s Secured Party's instructions, and if requested by shall, promptly upon request of the Administrative Agent shall use commercially reasonable efforts to Secured Party, cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Secured Party warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Secured Party's together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Secured Party, in its sole discretion, may require such Excess Collateral to be moved to another location specified by the Secured Party. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s 's ownership interests in all Inventory exceeding $100,000 in the aggregate stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s 's interests in such inventory Inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured PartiesParty.
Appears in 1 contract
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded the Investment PropertyProperty subject to the Liens identified on Schedule 7.02 of the Credit Agreement) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, (A) may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicableapplicable or (B) determine that such Deposit Account or Investment Property need not be subject to a control agreement and, with respect to Deposit Accounts, deemed an Excluded Account; provided, that in conjunction with any such determination under this item (B), such Deposit Account or Investment Property shall be subject to an aggregate maximum dollar limitation or balance to be determined by the Administrative Agent at such time. After the date hereofhereof and subject to the provisions of the foregoing sentence, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit request of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(a) and 4.6(b)) exceeding in value $1,000,000 in the aggregate is (such Collateral exceeding such amount, the “Stored Collateral”i) is located on property leased by a Grantor or (ii) at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall shall, with respect to Section 4.6(c)(i), obtain landlord waiver and/collateral access agreements, and with respect to Section 4.6(c)(ii), notify such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment to hold all such Collateral for the benefit of the Administrative Agent subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, warehouse receipts, bills of lading or any similar documents relating to such Collateral, together with an Effective Endorsement and Assignment; provided, that in each of the foregoing cases, that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, (A) may require such Collateral to be moved to another location specified thereby or (B) determine that no landlord waiver, warehouseman’s letter or the like is required; provided, that in conjunction with any such determination under this item (B), such collateral located at the location in question shall be limited to an aggregate maximum dollar limitation determined by the Administrative Agent at such time. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
Appears in 1 contract
Samples: Collateral Agreement (Heartland Payment Systems Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor Grantor, and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent Secured Party with Control of such Deposit Account or Investment Property Property, and otherwise in form and substance reasonably satisfactory to the Administrative Agent Secured Party (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative AgentSecured Party, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent Secured Party or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bankEach Grantor will, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit promptly upon request of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured ObligationsParty, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent Secured Party to provide the Administrative Agent Secured Party with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent Secured Party identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 200,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Secured Party’s account subject to the Administrative AgentSecured Party’s instructions, and if requested by shall, promptly upon request of the Administrative Agent shall use commercially reasonable efforts to Secured Party, cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Secured Party warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Secured Party together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Secured Party, in its sole discretion, may require such Excess Collateral to be moved to another location reasonably approved by the Secured Party. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory exceeding $200,000 in the aggregate stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory Inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured PartiesParty.
Appears in 1 contract
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor Grantor, and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent Secured Party with Control of such Deposit Account or Investment Property Property, and otherwise in form and substance reasonably satisfactory to the Administrative Agent Secured Party (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative AgentSecured Party, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent Secured Party or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent Secured Party to provide the Administrative Agent Secured Party with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent Secured Party identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any books and records of any Grantor, or any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 10,000 in the aggregate (such books and records, and/or such Collateral exceeding such amount, the “Stored Excess Collateral”) ), is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement to hold all such Collateral for the benefit of the Administrative Agent Secured Party’s account subject to the Administrative AgentSecured Party’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Secured Party warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Secured Party’s together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Secured Party, in its sole discretion, may require such Excess Collateral to be moved to another location specified by the Secured Party. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured PartiesParty.
Appears in 1 contract
Samples: Collateral Agreement (Clearpoint Business Resources, Inc)
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “"Controlled Depositary”", and any such Securities Intermediary executing and delivering any such control agreement, a “"Controlled Intermediary”)") within five (5) Business Days of such request. In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereofFollowing any such request, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository Depositary or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 50,000 in the aggregate (such Collateral exceeding such amount, the “Stored "Excess Collateral”") is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such the applicable Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s 's written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Agent's account subject to the Administrative Agent’s 's instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Administrative Agent together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s its ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s 's interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of itself and the Secured Partiesother Lenders.
Appears in 1 contract
Samples: Collateral Agreement (Knology Inc)
Control Covenants. (a) To further secure As provided in the prompt payment and performance Purchase Agreement, following an Event of all Secured ObligationsDefault, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such each Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary depository bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent Purchaser with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent Purchaser in its sole discretion (any such depositary depository bank executing and delivering any such control agreement, a “Controlled DepositaryDepository”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary depository bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative AgentPurchaser, in its sole discretion, may require the applicable Deposit Account (other than Excluded Deposit Accounts) and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary Depository or Controlled Intermediary, as applicable. After the date hereofhereof to the extent required by the Purchase Agreement, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms request of the Credit AgreementPurchaser, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent Purchaser to provide the Administrative Agent Purchaser with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent Purchaser identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If With respect to any Inventory of such Grantor: (i) such Inventory is located at one of such Grantor’s locations set forth in Schedule 3.6 hereto (as such Schedule 3.6 may be modified and updated from time to time by written notice to Purchaser), except for inventory which, in the Ordinary Course of Business, is in transit (A) from a supplier to such Grantor, or(B) between the locations specified in Schedule 3.6; (ii) promptly upon the written request of the Purchaser, each applicable Grantor shall obtain a landlord agreement in form and substance satisfactory to Purchaser in its sole discretion in place with respect to any leased locations where Collateral is stored or located; (other than iii) promptly upon the written request of the Purchaser, each applicable Grantor shall obtain a bailee letter agreement delivered to Purchaser in form and substance satisfactory to Purchaser in its sole discretion for any such location where Collateral specifically is stored or located; (iv) promptly upon the written request of the Purchaser, each applicable Grantor shall obtain a mortgagee waiver delivered to Purchaser in form and substance satisfactory to Purchaser in its sole discretion for any such location owned by any Grantor where Collateral is stored or located; (v) such Grantor has good and merchantable title to such Inventory and such Inventory is not subject to any Lien whatsoever except for the provisions Lien granted to Purchaser hereunder, and except for Permitted Liens; (vi) such Inventory is not subject to any licensing, patent, royalty, trademark, trade name or copyright agreements with any third parties that restricts such Grantor’s ability to manufacture and/or sell the Inventory; and (vii) the disposition of Sections 4.6(a) and 4.6(b)) exceeding in value $1,000,000 in such Inventory by Purchaser following an Event of Default shall not require the aggregate (such Collateral exceeding such amount, the “Stored Collateral”) is at any time in the possession or control consent of any single consignee, warehouseman, bailee (other than Person and shall not constitute a carrier transporting breach or default under any Contract or agreement to which such Grantor is a party or to which such Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)is subject. Further, such Grantor shall notify such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment to hold all such Collateral for the benefit of the Administrative Agent subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, warehouse receipts, bills of lading or any similar documents relating to such Collateral, together with an Effective Endorsement and Assignment. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC or any Requirements of Law to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory Inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwiseotherwise under any Requirements of Law. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, assigned to the Administrative Agent, for the ratable benefit of the Secured PartiesPurchaser.
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Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) ),
(i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than a Deposit Account that constitutes Excluded Deposit AccountsCollateral) owned by such Grantor (unless (x) such Deposit Account has (and at all times during the term of this Agreement will have) a credit balance of less than $50,000, and (y) such Deposit Account, together with all other Deposit Accounts for which there is no Control Agreement in effect and for which a Control Agreement would be required to be in effect but for these clauses (x) and (y), has an aggregate credit balance of less than $200,000); and
(ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such GrantorGrantor (unless (x) such Investment Property has (and at all times during the term of this Agreement will have) a value of less than $50,000, and (y) such Investment Property, together with all other Investment Property for which there is no Control Agreement in effect and for which a Control Agreement would be required to be in effect but for these clauses (x) and (y), has an aggregate value of less than $200,000), to execute and deliver a control agreement, Control Agreement in form and substance reasonably satisfactory to such depositary bank and the Administrative Agent that is sufficient to provide the Administrative Agent with Control of such Deposit Account or such Investment Property (as the case may be), providing that no such depositary bank or Securities Intermediary shall take instructions from the applicable Grantor after notice from Administrative Agent of the commencement of a Cash Dominion Period (but upon expiration of any Cash Dominion Period Administrative Agent shall notify such depositary bank or such Securities Intermediary that the applicable Grantor is once again entitled to give instructions to such depositary bank or Securities Intermediary), and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreementControl Agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreementControl Agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreementControl Agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all All Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than such Deposit Accounts and Investment Property that constitute Excluded Investment PropertyCollateral) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are reasonably requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of on the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 in the aggregate individually at any one location (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory Network Assets to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement to hold all such Excess Collateral for the benefit of the Administrative Agent subject to the Administrative Agent’s account subject to Administrative Agent’s reasonable instructions, and if requested by the Administrative Agent shall use its commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Excess Collateral to Administrative Agent’s together with an Effective Endorsement and Assignment. Further, within ninety (90) days of the date hereof, each Grantor shall use its commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory Network Assets that is Excess Collateral stored with a consignee that has an aggregate book value in excess of $5,000,000 for more than twelve (12) months against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
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Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property Securities Account (other than Excluded Investment PropertySecurities Accounts) owned by such Grantor, to execute and deliver a control agreementControl Agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property Securities Account and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreementControl Agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreementControl Agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreementControl Agreement, the Administrative Agent, in its sole discretion, may require that either (a) the applicable Deposit Account and Investment Property or Securities Account to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable, or (b) the balance from such Deposit Account be swept into a Deposit Account subject to a Control Agreement. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property Securities Accounts (other than Excluded Investment PropertySecurities Accounts) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit request of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such each Grantor will take such actions and deliver all such agreements as are reasonably requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of (i) the Letter-of-Credit Rights and identified on Schedule 3.8 (as updated from time to time in accordance with Section 4.4(c)(vii)), (ii) each Electronic Chattel Paper identified on Schedule 3.8 (as updated from time to time in accordance with Section 4.4(c)(iv)), and (iii) each Uncertificated Security acquired, possessed or owned or held by such Grantor for which Grantor is required to notify the Administrative Agent of such Grantor’s acquisition, possession or ownership thereof pursuant to Section 4.4(c), including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(e) If any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(a) and 4.6(b)) exceeding in value $1,000,000 in the aggregate (such Collateral exceeding such amount, the “Stored Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x), such Grantor shall notify such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment to hold all such Collateral for the benefit of the Administrative Agent subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, warehouse receipts, bills of lading or any similar documents relating to such Collateral, together with an Effective Endorsement and Assignment. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
Appears in 1 contract
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor Grantor, and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent Secured Party with Control of such Deposit Account or Investment Property Property, and otherwise in form and substance reasonably satisfactory to the Administrative Agent Secured Party (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative AgentSecured Party, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent Secured Party or a different Controlled Depositary or Controlled Intermediary, as applicable. After , reasonably selected by the date hereofGrantor and reasonably satisfactory to the Secured Party, all Deposit Accounts (other than Excluded Deposit Accounts) which agrees to execute and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicabledeliver such control agreement.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent Secured Party to provide the Administrative Agent Secured Party with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent Secured Party identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 5,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Secured Party’s account subject to the Administrative AgentSecured Party’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Secured Party warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Secured Party together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Secured Party, in its sole discretion, may require such Excess Collateral to be moved to another location specified by the Secured Party. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured PartiesParty.
Appears in 1 contract
Samples: Collateral Agreement (General Environmental Management, Inc)
Control Covenants. (a) To further secure At the prompt payment and performance request of all Secured Obligations, such Grantor hereby grants to the Administrative Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such each Grantor shall instruct request (and otherwise use its commercially reasonable efforts to cause) (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Collateral Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Collateral Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Collateral Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to request of the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such each Grantor will take such commercially reasonable actions and deliver all such agreements as are reasonably requested by the Administrative Collateral Agent to provide the Administrative Collateral Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper with a fair market value in excess of $25,000 owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Collateral Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If Upon the request of the Collateral Agent, if any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and or Section 4.6(b)) exceeding in value $1,000,000 25,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single landlord, consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of businessbusiness or third party repairing or restoring such Collateral), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such the applicable Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Collateral Agent’s account subject to the Administrative Collateral Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Collateral Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral together with an Effective Endorsement and Assignment. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
Appears in 1 contract
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Propertythe Bank of America Securities Account) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Propertythe Bank of America Securities Account) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit request of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such each Grantor will take such commercially reasonable actions and deliver all such agreements as are reasonably requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and all Electronic Chattel Paper Paper, in each case, in excess of $200,000 individually or $750,000 in the aggregate and owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(aSection 4.5(a) and 4.6(bSection 4.5(b)) exceeding in value $1,000,000 100,000 in the aggregate (such Collateral exceeding such amount, the “Stored Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment in writing to hold all such Collateral for the benefit of the Administrative Agent subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, together with an Effective Endorsement and Assignment. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
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Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(e) If any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(a) and 4.6(b)) exceeding in value $1,000,000 in the aggregate (such Collateral exceeding such amount, the “Stored Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’xMoody’s), such Grantor shall notify such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment to hold all such Collateral for the benefit of the Administrative Agent subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, warehouse receipts, bills of lading or any similar documents relating to such Collateral, together with an Effective Endorsement and Assignment. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
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Samples: Credit Agreement (Imation Corp)
Control Covenants. (a) To further secure Upon the prompt payment and performance request of all Secured Obligationsthe Purchaser, as provided in Section 8.17 of the Purchase Agreement, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) (i) each depositary depository bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent Purchaser with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent Purchaser (any such depositary depository bank executing and delivering any such control agreement, a “Controlled DepositaryDepository”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary depository bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative AgentPurchaser, in its sole discretion, may require the applicable Deposit Account (other than Excluded Deposit Accounts) and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary Depository or Controlled Intermediary, as applicable. After the date hereofhereof to the extent required by the Purchase Agreement, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to Upon the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms request of the Credit AgreementPurchaser, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent Purchaser to provide the Administrative Agent Purchaser with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent Purchaser identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding with a value in value excess of $1,000,000 100,000 in the aggregate (such Collateral exceeding such amount, the “Stored Excess Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment in writing to hold all such Collateral for the benefit of the Administrative Agent Purchaser subject to the Administrative AgentPurchaser’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Purchaser warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Purchaser together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Purchaser, subject to approval of the Required Holders, not to be unreasonably withheld, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each such Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC or any Requirements of Law to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory Inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwiseotherwise under any Requirements of Law. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, assigned to the Administrative Agent, for the ratable benefit of the Secured PartiesPurchaser.
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Control Covenants. (a) To further secure the prompt payment and performance of all Secured ObligationsEach Grantor shall, such Grantor hereby grants on or prior to the Administrative Agentdate hereof, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Grantor shall instruct (and otherwise use its commercially reasonable efforts to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding maintaining any Investment Property Securities Account (other than Excluded Investment PropertySecurities Accounts) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property Securities Account and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “"Controlled Depositary”", and any such Securities Intermediary executing and delivering any such control agreement, a “"Controlled Intermediary”"). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property Securities Accounts (other than Excluded Investment PropertySecurities Accounts) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are reasonably requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Letter-of-Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof. The actions in the preceding sentence shall not be required to the extent that the amount of any such Letter of Credit Rights, together with the aggregate amount of all other Letters of Credit Rights for which the actions described above have not been taken, does not exceed $500,000 in the aggregate for all Grantors.
(ec) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and Section 4.6(b)) exceeding in value $1,000,000 500,000 in the aggregate (such Collateral exceeding such amount, the “Stored "Excess Collateral”") is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall shall, upon request of the Administrative Agent, use its commercially reasonable efforts to obtain such Person’s 's written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Agent's account subject to the Administrative Agent’s instructions, 's instructions and if requested by the Administrative Agent shall use commercially reasonable efforts to cause subordinate its lien in such Person to issue and deliver to the Grantor, who shall promptly delver Collateral to the Administrative Agent, warehouse receipts, bills of lading or any similar documents relating to such Collateral, together with an Effective Endorsement and Assignment's Lien. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s 's ownership interests in all Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s 's interests in such inventory under Section 2-326, Section 9-103, Section 9-324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
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Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded Deposit Accounts) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Property) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “Controlled Depositary”, and any such Securities Intermediary executing and delivering any such control agreement, a “Controlled Intermediary”). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(e) If any Collateral (other than Collateral specifically subject to the provisions of Sections Section 4.6(a) and 4.6(b)) exceeding in value $1,000,000 in the aggregate aggregate, as determined on the Closing Date and on each fiscal quarter end thereafter (such Collateral exceeding such amount, the “Stored Excess Collateral”) ), is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business), processor, or any other third party (other than an Approved Consignee with a credit rating of BB+ (or better) with S&P and Ba1 (or better) with Xxxxx’x)party, such Grantor shall notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Agent’s account subject to the Administrative Agent’s instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Administrative Agent’s office together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, may require such Excess Collateral to be moved to another location specified thereby. Further, within ninety (90) days of the date hereof, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s ownership interests in all such Inventory stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s interests in such inventory under Section 2-3262326, Section 9-103, Section 9-324 and Section 9-505 of the UCC DCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c4.6(b) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of the Secured Parties.
Appears in 1 contract
Control Covenants. (a) To further secure the prompt payment and performance of all Secured Obligations, such Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in and Lien upon all amounts credited to any Deposit Account and upon all Investment Property credited to any Securities Account of such Grantor, including any sums in any blocked or lockbox accounts or in any accounts into which such sums are swept. Such Each Grantor shall instruct (and otherwise use its commercially reasonable efforts efforts) to cause) cause (i) each depositary bank (other than the Administrative Agent) holding a Deposit Account (other than Excluded any Exempted Deposit AccountsAccount so long as no Default or Event of Default has occurred and is continuing) owned by such Grantor and (ii) each Securities Intermediary holding any Investment Property (other than Excluded Investment Propertya Short Term Investment, so long as no Default or Event of Default has occurred and is continuing) owned by such Grantor, to execute and deliver a control agreement, sufficient to provide the Administrative Agent with Control of such Deposit Account or Investment Property and otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such depositary bank executing and delivering any such control agreement, a “"Controlled Depositary”", and any such Securities Intermediary executing and delivering any such control agreement, a “"Controlled Intermediary”"). In the event any such depositary bank or Securities Intermediary refuses to execute and deliver such control agreement, the Administrative Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property to be transferred to the Administrative Agent or a Controlled Depositary or Controlled Intermediary, as applicable. After the date hereof, all Deposit Accounts (other than Excluded Deposit Accounts) and all Investment Property (other than Excluded Investment Property) will be maintained with the Administrative Agent or with a Controlled Depository or a Controlled Intermediary, as applicable.
(b) The Grantors shall maintain a Dominion Account pursuant to lockbox or other arrangements acceptable to the Administrative Agent. The Grantors shall obtain an agreement (in form and substance satisfactory to the Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing the Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges and returned items. If a Dominion Account is not maintained with Bank of America, the Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. The Administrative Agent and the other Secured Parties assume no responsibility to such Grantor for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(c) Any Cash Collateral may be invested, at the Administrative Agent’s discretion, in Cash Equivalents, but the Administrative Agent shall have no duty to do so, regardless of any agreement or course of dealing with such Grantor, and shall have no responsibility for any investment or loss. Such Grantor hereby grants to the Administrative Agent, for the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Secured Obligations, whether such Cash Collateral is held in a Cash Collateral account or elsewhere. The Administrative Agent may apply Cash Collateral to the payment of any Secured Obligations, in accordance with the terms of the Credit Agreement, as they become due and payable. Each Cash Collateral account and all Cash Collateral shall be under the sole dominion and control of the Administrative Agent. Neither such Grantor nor any other Person claiming through or on behalf of such Grantor shall have any right to any Cash Collateral, until Full Payment of all Secured Obligations.
(d) Such Grantor will take such actions and deliver all such agreements as are requested by the Administrative Agent to provide the Administrative Agent with Control of all Letter of Credit Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation, with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as the assignee of the Record(s) pertaining to the single authoritative copy thereof.
(ec) If Each Grantor shall, with respect to any Collateral (other than Collateral specifically subject to the provisions of Sections 4.6(aSection 4.06(a) and 4.6(bSection 4.06(b)) exceeding in value $1,000,000 in the aggregate (such Collateral exceeding such amount, the “Stored Collateral”) is at any time in the possession or control of any single consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the ordinary course of business)bailee, processor, or any other third party (other than an Approved Consignee with a credit rating Cylinder Inventory and related display and sales racks in the possession or control of BB+ or consigned to Home Depot Inc., Xxxx'x Companies, Inc., Sears, Xxxxxxx and Co. (or better) with S&P and Ba1 (or better) with Xxxxx’xincluding, without limitation, Orchard Supply), Wal-Mart Stores, Inc. (including, without limitation, Sam's Club) or KMart Corporation or a carrier transporting Inventory in the ordinary course of business) exceeding in value $10,000 at any one location (such Grantor shall Collateral exceeding such amount, the "Excess Collateral"), notify in writing such Person in writing of the Security Interests created hereby, shall use its commercially reasonable efforts to obtain such Person’s 's written acknowledgment agreement in writing to hold all such Collateral for the benefit of the Administrative Agent Agent's account subject to the Administrative Agent’s 's instructions, and if requested by the Administrative Agent shall use commercially reasonable efforts to cause such Person to issue and deliver to the Grantor, who shall promptly delver to the Administrative Agent, Agent warehouse receipts, bills of lading or any similar documents relating to such Collateral, Collateral to the Administrative Agent's together with an Effective Endorsement and Assignment; provided that if such Grantor is not able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in its sole discretion, may require such Collateral or Excess Collateral, as applicable, to be moved to another location specified thereby. Further, within ninety (90) days upon the request of the date hereofAdministrative Agent, each Grantor shall use commercially reasonable efforts to perfect and protect such Grantor’s 's ownership interests in all Inventory (other than Cylinder Inventory and other Inventory that is excluded from the Borrowing Base so long as no Default or Event of Default has occurred or is continuing) stored with a consignee that has an aggregate book value in excess of $5,000,000 against creditors of the consignee by filing and maintaining financing statements against the consignee reflecting the consignment arrangement filed in all appropriate filing offices, providing any written notices required by the UCC to notify any prior creditors of the consignee of the consignment arrangement, and taking such other actions as may be appropriate to perfect and protect such Grantor’s 's interests in such inventory under Section 2-326, Section 9-103, Section 9-9 324 and Section 9-505 of the UCC or otherwise. All such financing statements filed pursuant to this Section 4.6(c4.06(c) shall be assigned, on the face thereof, to the Administrative Agent, for the ratable benefit of itself and the Secured Partiesother Lenders.
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