Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment: (a) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), to comply with instructions originated by the Administrative Agent directing the disposition of funds in any Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Agent (the “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing. (b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent. (c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor. (d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account). (e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent. (f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be. (g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account. (h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Alliant Techsystems Inc), Credit Agreement (Alliant Techsystems Inc), Credit Agreement (Alliant Techsystems Inc)
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and Each Grantor will maintain all Account Collateral only with the Administrative Agent shall or with banks (the “Pledged Account Banks”) that have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance satisfactory to the Administrative Agent (the “Account Control Agreement”); provided, however, this Section 5(a) or (ii) instruct all account debtors shall not apply to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be Other Deposit Accounts listed in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingSchedule VIII hereto.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral an Other Deposit Account or, if permitted by the Administrative Agent, to or a Deposit Account maintained with a Pledged Account Bank and/or and (ii) if so requested, deposit in the Collateral an Other Deposit Account or, if permitted by the Administrative Agent, or a Deposit Account or pay to the Administrative Agent for deposit in a Deposit Account, at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V VII hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a an Other Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) 10 days’ prior written notice of such termination (and, upon such termination, Schedule V VIII hereto shall be automatically amended to delete such Pledged Account Bank and Other Deposit Account).
(ed) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account listed in Part II of Schedule VII and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, listed in each case Part II of Schedule VII hereto so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(e) The Borrower may draw checks on, and otherwise withdraw amounts only from, the Deposit Accounts and in such amounts as may be required in the ordinary course of business (including, without limitation, to pay or prepay Debt outstanding under the Loan Documents).
(f) Upon the occurrence and during the continuance of a Specified Default, the The Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, Account and the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, Account and the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, Account and the L/C Collateral Account or the Deposit AccountsAccount, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, Account and the L/C Collateral Account or the Deposit Accounts (only to the extent so directed)Account, as the case may be.
(g) The Administrative Agent may, (i) at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents if an Event of Default shall have occurred and be continuing and (ii) at any time after the Collateral Account has been opened and without notice to, or consent from, the Grantor, transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 2 contracts
Samples: Security Agreement (Grubb & Ellis Co), Security Agreement (Grubb & Ellis Co)
Maintaining the Account Collateral. So long as any Loan Accommodation or any other Secured Obligation secured by the Pledge and Security Agreement (other than contingent indemnification claims as to which no valid demand has been made, “Unmatured Surviving Obligations”) of any Loan Party under any Loan Credit Document shall remain unpaid, any Letter of Credit unpaid or shall be outstanding, any Secured Hedge Eligible Cash Management Agreement or Eligible Hedging Agreement shall be in effect or any Lender Party shall have any Commitment:
(ai) If a Specified Default shall have occurred and be continuing and Each U.S. Grantor will maintain deposit accounts only with the financial institution acting as Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank or Collateral Agent hereunder or with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”)) that has agreed with such U.S. Grantor and the Administrative Agent or the Collateral Agent, as applicable, to comply with instructions originated by the Administrative Agent or the Collateral Agent, as applicable, directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such U.S. Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be agreement in form and substance reasonably satisfactory to the Administrative Agent and such U.S. Grantor (the a “Deposit Account Control Agreement”); provided, however, that this Section 7.01(15)(c) shall only apply to accounts maintained in the United States and shall not apply to deposit accounts (A) used solely as a tax or payroll account, escrow account, trust account, xxxxx cash account or flexible spending account, in each case maintained in the ordinary course of business or (B) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party deposit accounts to the extent that a Trigger the aggregate amount on deposit with all such other deposit accounts does not exceed U.S. $20,000,000, or such lower amount as may be required under the Term B Credit Agreement at any time.
(ii) The Administrative Agent may (or may request that the Collateral Agent), at any time during the continuance of an Event has occurred) of Default, request that each U.S. Grantor instruct each Person obligated at any time to make any payment to such U.S. Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Collateral Account orAccount, if permitted by the Administrative Agent, except that such U.S. Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account maintained with a Pledged or Collateral Account Bank and/or as of the date hereof, (ii) if so requested, deposit making payments to such U.S. Grantor of less than $250,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security of the Guaranteed Parties in accordance with this Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the any.
(iii) The Administrative Agent to notify each Obligor may (or may request that such payments have been assigned to the Administrative Agent as collateral hereunder Collateral Agent), at any time during the continuance of an Event of Default and to instruct such Obligor to make all payments without notice to, or consent from, any U.S. Grantor, transfer, or direct the transfer of, funds from the Pledged Deposit Accounts to the Collateral Account or as otherwise directed by to satisfy the Administrative AgentSecured Obligations under the Security and Pledge Agreement and other Credit Documents.
(civ) If Upon any termination by a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with U.S. Grantor of any Pledged Account BankDeposit Account, if requested by the Administrative Agent, each such U.S. Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless promptly (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicabletransferred within the United States, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Pledged Deposit Account Account, to the extent future payments continue to be made within the United States, to make all future payments to another Pledged Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent or the Collateral Agent, as applicable, shall have a continuously perfected security interest in such Account CollateralCollateral Account, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Open Text Corp), Credit Agreement (Open Text Corp)
Maintaining the Account Collateral. So long as any Loan or any other Obligation Until the payment in full of any Loan Party under any Loan Document shall remain unpaidthe Secured Obligations in accordance with Section 1.02(b) of the Credit Agreement, any Letter subject to the terms and provisions of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitmentthe ABL Intercreditor Agreement:
(a) If Each Grantor will maintain Deposit Accounts only with the financial institution acting as Collateral Agent hereunder or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any such Deposit Account Collateral without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Borrower and Collateral Agent (the each, a “Deposit Account Control Agreement”); provided, however, that this Section 6(a) or shall not apply to the following Deposit Accounts (collectively, “Excluded Deposit Accounts”): (i) accounts used solely as local store level accounts (to the extent that the aggregate amount on deposit with such local store level accounts does not exceed $3,500,000 (other than temporary increases due to high sales volume for any consecutive five (5) day period beginning on a Friday of any week and ending on the Tuesday of the following week), in each case maintained in the ordinary course of business, (ii) instruct all zero balance accounts, (iii) accounts constituting (and solely used for) a tax or payroll account, escrow account, trust account, xxxxx cash account debtors (to make all payments to one the extent that the aggregate amount on deposit with such xxxxx cash accounts does not exceed $100,000), pension, employee benefits or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be trust purposes, flexible spending benefit account, or for the benefit of any other party other than any Grantor or Subsidiary, in each case maintained in the name ordinary course of business, or (iv) other Deposit Accounts to the extent that the aggregate amount on deposit with each Deposit Account does not exceed $250,000 at any time. Each Grantor agrees that at no time shall the aggregate amount on deposit in all Deposit Accounts referred to in the foregoing clause (iv) for which there is not in effect a Deposit Account Control Agreement exceed $500,000. So long as no Triggering Event has occurred and under is continuing, the control of such Collateral Agent agrees that (i) it shall not issue any instructions to any Pledged Account Bank under a lockbox agreement duly executed by or withhold any withdrawal rights from such Grantor with respect to funds from time to time credited to any Deposit Account and (ii) upon the termination of all such Triggering Events, the Collateral Agent shall thereafter take such action, at the expense of such Grantor, as shall be reasonably necessary to reconvey to such Grantor and the right to give instructions directing the disposition of funds credited to any such Pledged Account Bank, in form and substance satisfactory Deposit Account. Notwithstanding anything contained herein to the Administrative Agent. Thereaftercontrary, each Grantor will maintain all shall transfer, or direct the transfer of, funds from its local store level accounts and credit card processors to a cash concentration account that shall be a Pledged Deposit Account within three (3) Business Days (or such longer period as the Collateral only with the Administrative Agent or Pledged Account Banks unless may agree in its sole discretion) of such Specified Default shall no longer be continuingfunds being deposited.
(b) If After the occurrence and during the continuance of a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requestedTriggering Event, within ten (10 Business Days after any such request, x) each Grantor will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Collateral Account, except that such Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account or Collateral Account as of the date hereof, (ii) making payments to such Grantor less than $100,000 a year in the aggregate, or (iii) making payments to accounts not purported to be subject to the security interest of the Secured Parties in accordance with the Credit Agreement, if any; and (y) each Grantor shall cause all cash receipts and collections received by such Grantor from all sources, including, without limitation, all available cash receipts from the sale of Inventory and other assets (whether or not constituting Collateral), all proceeds of collections of Receivables (including, without limitation, all Credit Card Receivables), all net proceeds and other cash payments received by a Grantor from any Person or from any source or on account of a Transfer or other transaction or event, and the proceeds of all credit card charges to be deposited into a Pledged Deposit Account or the Collateral Account. Notwithstanding the foregoing, prior to the Discharge of Term Obligations (as defined in the ABL Intercreditor Agreement), the proceeds of Term Priority Collateral may be deposited into the Term Loan Priority Account or as otherwise agreed to by the Term Collateral Agent.
(c) Notwithstanding anything contained in this Agreement to the contrary, upon the occurrence and during the continuance of a Triggering Event and upon distribution of a Notice of Exclusive Control by the Collateral Agent to the applicable Pledged Account Bank, (i) all cash and Cash Equivalents in each Pledged Deposit Account shall, on each Business Day, be transferred to the Collateral Account or, if permitted through daily sweeps and (ii) all cash and Cash Equivalents in the Collateral Account shall be applied (except as provided in Section 13(b) below) by the Administrative AgentCollateral Agent to prepay the Revolving Credit Facility in the manner set forth in Section 2.06(b)(iii) of the Credit Agreement.
(d) If, at any time after the occurrence and during the continuance of a Triggering Event, any cash or Cash Equivalents owned by any Grantor (other than amounts on deposit in Excluded Deposit Accounts) are deposited to any account, or held or invested in any manner, other than in a Pledged Deposit Account or the Collateral Account, the Collateral Agent may require the applicable Grantor to close such account and have all funds therein transferred to a Pledged Deposit Account maintained with Account, and all future deposits made to a Pledged Deposit Account.
(e) In the event that the Collateral Agent shall have delivered a Notice of Exclusive Control to a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, at which a Pledged Deposit Account at the end of each Business Dayis held, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default thereafter no Triggering Event shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If Agent shall deliver a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct written notice to such Pledged Account Bank to transfer to rescinding the Collateral Account, at the end Notice of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any GrantorExclusive Control previously delivered.
(df) During the continuation Upon any termination by a Grantor of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an or other account if a Deposit Account Control Agreement maintained with a Pledged Account Bank is entered into in respect of such other account or to the Collateral Account and (ii) notify all Obligors that were making payments to such Pledged Deposit Account to make all future payments to another Pledged Deposit Account maintained with or other account if a Pledged Account Bank covered by an Deposit Account Control Agreement is entered into in respect of such other account or to the Collateral Account, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent mayNotwithstanding anything in this Section 6 to the contrary, at any time and without notice toprior to the Discharge of Term Obligations (as defined in the ABL Intercreditor Agreement), or consent fromto the extent required by the ABL Intercreditor Agreement, the Grantor, if an Event proceeds of Default shall have occurred and Term Priority Collateral may be continuing (i) transfer, or direct deposited into the transfer of, funds from the Term Loan Priority Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order agreed to Cash Collateralize Letters by the Term Collateral Agent. The Grantors shall not deposit or cause to be deposited any funds into the Term Loan Priority Account other than proceeds of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this AgreementTerm Priority Collateral.
Appears in 2 contracts
Samples: Asset Based Loan Credit Agreement (Express, Inc.), Asset Based Loan Credit Agreement (Express, Inc.)
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect outstanding or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and Subject to Section 7.13(b) of the Administrative Agent shall have so requested, within forty-five (45) days after any such requestCredit Agreement, each Grantor shall (iother than the Holdings Grantors) cause each bank will maintain deposit accounts only with whom the financial institution acting as Collateral Agent hereunder or with a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has entered into an agreement with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the a “Deposit Account Control Agreement”); provided, however, that this Section 7(a) or (ii) instruct all account debtors shall not apply to make all payments Excluded Non-Pledged Accounts. The Collateral Agent agrees not to one or more other Pledged Account Banks by instructing that such payments be remitted issue any instructions to a post office box which shall be in the name and under the control of such any Pledged Account Bank under a lockbox agreement duly executed by except after the Grantor occurrence and such Pledged Account Bank, in form and substance satisfactory to during the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingcontinuance of an Event of Default.
(b) If a Specified Default shall have occurred After the occurrence and be continuing and during the Administrative Agent shall have so requestedcontinuance of an Event of Default, within ten (10 Business Days after any such requestupon the written request of the Collateral Agent, each Grantor (other than the Holdings Grantors) will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Cash Collateral Account, except that such Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account or the Cash Collateral Account oras of the Closing Date, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit making payments to such Grantor of less than $5,000,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security interest of the Secured Parties in accordance with the Credit Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agentany.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon After the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition an Event of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Default under Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank8.01(b), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative or (h) of the Credit Agreement, the Collateral Agent may, at any time and without notice to, or consent from, from the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Pledged Deposit Accounts or the Cash Collateral Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transferObligations. The Collateral Agent agrees to give notice to such Grantor of such transfer or direction; provided, or direct the transfer of, funds from the Deposit Accounts to however that any failure by the Collateral AccountAgent to give such notice shall not invalidate such transfer or direction.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 2 contracts
Samples: Security Agreement, Security Agreement (Madison Square Garden Co)
Maintaining the Account Collateral. So long as any Term Loan or any other Obligation (other than Unaccrued Indemnity Claims) of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstandingunpaid or unsatisfied, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any CommitmentTerm Commitment under the Credit Agreement:
(a) If a Specified Default shall have occurred and No later than 15 days after the date hereof (or such later date as may be continuing and consented to by the Required Lenders (which consent may not be unreasonably withheld)), at all times thereafter, each Grantor will maintain all Account Collateral (other than accounts specifically designated to the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall in writing as (i) cause each trust accounts (to the extent of amounts held therein in trust in the ordinary course of business on behalf of third parties who are not Loan Parties or Subsidiaries of Loan Parties) or (ii) payroll accounts (the balances in which shall not exceed in the aggregate for all accounts referred to in this clause (ii) $3,000,000 at any one time), such accounts in clauses (i) and (ii) of this Section 5(a) being referred to herein as “Restricted Accounts”) only with the Collateral Agent or with a bank with whom a Deposit (the “Pledged Account is maintained to agree Bank”) that has agreed, in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “Pledged Account Bank”), to (A) comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice Grantor following the occurrence of Exclusive Control”) shall be withdrawn in the event such Specified an Event of Default shall no longer be continuing and (iiB) waive or subordinate in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the an “Account Control Agreement”) or (ii) instruct all account debtors ); provided that, with respect to make all payments to one or more other Pledged any newly created Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. ThereafterCollateral, each Grantor will maintain all be required to comply with the foregoing requirements with respect to such newly created Account Collateral only with no later than 5 days after the Administrative Agent or Pledged creation of such Account Banks unless such Specified Default shall no longer be continuingCollateral.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank (in each case unless (i) in respect of a Restricted Account or (ii) in respect of an account with a value of less than $25,000, provided that the Administrative aggregate value of all such accounts excluded under this clause (ii) shall not exceed $100,000) unless, (A) the Collateral Agent shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and (iiB) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V VII hereto shall be automatically amended to include such Deposit Account). During the continuation Upon a Grantor’s termination of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate termination of any Account Collateral, except that the such Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written shall promptly give notice of such termination to the Collateral Agent (and, upon such termination, Schedule V VII hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account); provided, however, that, unless the Collateral Agent has given its express consent, no Grantor may (1) terminate any bank as a Pledged Account Bank with respect to any Cash Collateral Account, (2) terminate any Cash Collateral Account, or (3) terminate any bank as a Pledged Account Bank if an Event of Default has occurred and is continuing.
(ec) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered (other than a Restricted Account) by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank listed in Schedule VII or to the a Cash Collateral Account and (ii) notify all Obligors Persons obligated at any time to make any payment to such Grantor for any reason that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement listed in Schedule VII hereto or to the a Cash Collateral Account, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Collateral Agent.
(fd) Upon the occurrence and during the continuance of a Specified Default, the Administrative The Collateral Agent shall have sole right to direct the disposition of funds with respect to each of the any Cash Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the any Cash Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the any Cash Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will will, except on the Collateral Agent’s instructions, be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the any Cash Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(ge) The Administrative If an Event of Default shall have occurred and be continuing, the Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the a Cash Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: First Lien Security Agreement (Terremark Worldwide Inc)
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall Each Grantor will maintain all Account Collateral only with the Collateral Agent or with banks (the “Pledged Account Banks”) that have occurred and be continuing and the Administrative Agent shall have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment Grantor to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the “Account Control Agreement”); provided, however, this Section 5(a) or shall not apply to any payroll and deposit accounts listed in Schedule VII hereto (ii) instruct all account debtors to make all payments to one or the “Excluded Accounts”). The Grantors will not at any time maintain more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be than $25 million in the name and under the control of such Pledged Account Bank under aggregate in all Excluded Accounts for a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingperiod exceeding five consecutive Business Days.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party Except with respect to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified DefaultExcluded Accounts, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Collateral Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V VI hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account CollateralCollateral (other than an Excluded Account), except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Collateral Agent at least ten (10) 10 days’ prior written notice of such termination (and, upon such termination, Schedule V VI hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(ec) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered (other than an Excluded Account) by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account listed in Schedule VI and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, listed in each case Schedule VI hereto so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Collateral Agent.
(fd) Upon The Collateral Agent shall have sole right, upon the occurrence and during the continuance of a Specified Defaultan Event of Default under Sections 6.01(a) or 6.01(f), the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, Account and the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, Account and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that that, upon the occurrence and during the continuance on an Event of Default under Sections 6.01(a) or 6.01(f), no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed)Accounts, as the case may be.
(ge) The Administrative Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s payment obligations under the Loan Documents if an Event of Default under Sections 6.01(a) or 6.01(f) shall have occurred and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Accountbe continuing.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation (other than Unmatured Surviving Obligations) of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment, subject to the terms and provisions of the Intercreditor Agreement:
(a) If Each Grantor will maintain deposit accounts only with the financial institution acting as Collateral Agent hereunder or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Borrower and Collateral Agent (the each, a “Deposit Account Control Agreement”); provided, however, that this Section 5(a) shall not apply to deposit accounts (collectively, “Excluded Deposit Accounts”) (i) used solely as local store level accounts (to the extent that the aggregate amount on deposit with such local store level accounts does not exceed $5,000,000 (other than temporary increases due to high sales volume for any consecutive five (5) day period beginning on a Friday of any week and ending on the Tuesday of the following week), zero balance accounts, a tax or payroll account, disbursement account, escrow account, trust account, xxxxx cash account (to the extent that the aggregate amount on deposit with such xxxxx cash accounts does not exceed $100,000), pension, employee benefits or other trust purposes, flexible spending benefit account, or for the benefit of any other party other than any Grantor or Subsidiary, in each case maintained in the ordinary course of business, (ii) instruct other deposit accounts to the extent that the aggregate amount on deposit with each deposit account does not exceed $500,000 at any time or (iii) where the Collateral Agent is the bank. Each Grantor agrees that at no time shall the aggregate amount on deposit in all account debtors deposit accounts referred to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name foregoing clause (ii) for which there is not in effect a Deposit Account Control Agreement exceed $1,500,000. So long as either an Event of Default or a Cash Control Trigger (as defined below) has not occurred and under is continuing, the control of such Collateral Agent agrees that (i) it shall not issue any instructions to any Pledged Account Bank under or withhold any withdrawal rights from such Grantor with respect to funds from time to time credited to any deposit account and (ii) upon (x) cure (but not a lockbox agreement duly executed by partial cure) or waiver of any previously continuing Event of Default or (y) the termination of a Cash Control Trigger (as defined below), the Collateral Agent shall thereafter take such action, at the expense of such Grantor, as shall be reasonably necessary to reconvey to such Grantor and the right to give instructions directing the disposition of funds credited to any such Pledged Account Bank, in form and substance satisfactory deposit account. Notwithstanding anything contained herein to the Administrative Agent. Thereaftercontrary, each Grantor will maintain all shall transfer, or direct the transfer of, funds from its local store level accounts and credit card processors to a cash concentration account that shall be a Pledged Deposit Account Collateral only with the Administrative Agent or Pledged Account Banks unless within three (3) Business Days of such Specified Default shall no longer be continuingfunds being deposited.
(b) If After the occurrence and during the continuance of (x) an Event of Default or (y) a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten Cash Control Trigger (10 Business Days after any such requestas defined below), each Grantor will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason with respect to ABL First Lien Collateral (an “Obligor”) to make such payment to a Pledged Deposit Account or the Collateral Account orAccount, if permitted by the Administrative Agent, except that such Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account maintained with a Pledged or Collateral Account Bank and/or as of the date hereof, (ii) if so requested, deposit making payments to such Grantor less than $100,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security interest of the Secured Parities in accordance with the Credit Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agentany.
(c) If Notwithstanding anything contained in this Agreement to the contrary, upon the occurrence and during the continuance of (x) an Event of Default or (y) a Specified Default shall have occurred Cash Control Trigger (as defined below) and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by upon written notice thereof from Collateral Agent to the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer (the “Notice of Exclusive Control”), (i) all cash and Cash Equivalents in the Pledged Deposit Account shall, on each Business Day, be transferred to the Collateral Account, at Account through daily sweeps and (ii) all cash and Cash Equivalents in the end of each Business Day or such other frequency Collateral Account shall be applied (except as provided in clause 12(b) below) by the Administrative Collateral Agent may direct, to prepay the Revolving Credit Facility in same day funds, an amount equal to the credit balance manner set forth in Section 2.06(b)(iii) of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any GrantorCredit Agreement.
(d) During If, at any time after the continuation occurrence and during the continuance of (w) and Event of Default or (x) a Cash Control Trigger (as defined below), any Specified Defaultcash or Cash Equivalents owned by any Grantor (other than amounts on deposit in Excluded Deposit Accounts) with respect to ABL First Lien Collateral are deposited to any account, each or held or invested in any manner, other than in a Pledged Deposit Account or the Collateral Account, the Collateral Agent may require the applicable Grantor agrees that it will not add any bank that maintains a deposit account for to close such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement all funds therein transferred to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as all future deposits made to a Pledged Account Bank Deposit Account. In addition to the foregoing, during the continuance of an Event of Default, upon the request of the Collateral Agent, each Grantor shall provide the Collateral Agent with respect to such an accounting of the contents in each Pledged Deposit Account, if it gives which shall identify, to the Administrative reasonable satisfaction of the Collateral Agent, the proceeds from the First Lien Term Collateral (as defined in the Intercreditor Agreement) which were deposited in the Pledged Deposit Account and swept into the Collateral Account. Upon the receipt of the (y) contents of the Pledged Deposit Accounts, and (z) such accounting, the Collateral Agent at least ten agrees to remit to the collateral agent under the Term Loan Facility the proceeds from the First Lien Term Collateral (10as defined in the Intercreditor Agreement) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account)received by the Collateral Agent.
(e) To In the extent Section 6(a) above is applicable, if during event that the continuation Collateral Agent shall have delivered a Notice of any Specified Default, Exclusive Control to a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect theretoat which a Pledged Deposit Account is held, and thereafter Excess Availability plus Eligible Cash Collateral exceeds $20,000,000 for thirty (30) consecutive days, the Collateral Agent, subject to no Event of Default existing at such time, shall deliver a written notice to such Pledged Account Bank rescinding the Notice of Exclusive Control previously delivered.
(f) Upon any termination by a Grantor of any Pledged Deposit Account, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an or other account if a Deposit Account Control Agreement maintained with a Pledged Account Bank is entered into in respect of such other account or to the Collateral Account and (ii) notify all Obligors that were making payments to such Pledged Deposit Account to make all future payments to another Pledged Deposit Account maintained with or other account if a Pledged Account Bank covered by an Deposit Account Control Agreement is entered into in respect of such other account or to the Collateral Account, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent mayFor purposes of this Agreement, “Cash Control Trigger” shall mean the failure of the Borrower to maintain Excess Availability plus Eligible Cash Collateral in an amount equal to at any time and without notice to, or consent from, the Grantor, if an Event of Default least $20,000,000 for five (5) consecutive Business Days; provided that a Cash Control Trigger shall have occurred and no longer be deemed to be continuing if Excess Availability plus Eligible Cash Collateral exceeds $20,000,000 for thirty (i30) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Accountconsecutive days.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Asset Based Loan Credit Agreement (Express Parent LLC)
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation of any Loan Party under any Loan Document shall remain unpaidunpaid (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted), any Letter of Credit shall be outstandingoutstanding (unless such Letter of Credit has been collateralized on terms and conditions satisfactory to the applicable Issuing Bank), any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If Each Grantor will maintain deposit accounts only with the financial institution acting as Collateral Agent hereunder or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Agent directing the disposition of funds in any Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Agent (the “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Defaultan Event of Default that has not been waived, the Administrative Agent shall have sole right to direct directing the disposition of funds with respect in such deposit account without the further consent of such Grantor, such agreement to each of be in form and substance reasonably satisfactory to the Collateral AccountAgent (a “Deposit Account Control Agreement”); provided, the L/C Collateral Accounthowever, and, if this Section 6(a) shall be applicablenot apply to deposit accounts (i) with an aggregate balance of no more than $1,000,000 at any time; (ii) operated solely for payroll taxes, the Deposit Accountsemployee wages and benefit payments; and it shall be a term and condition of each of (iii) which the Collateral Account, Agent is the L/C Collateral Account, and the Deposit Accounts depositary bank; or (iv) any trust account maintained solely on behalf of such Grantor’s customers in the case ordinary course of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may bebusiness.
(gb) The Administrative Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral Pledged Deposit Accounts to satisfy the Grantor’s obligations under the Loan Documents if an Event of Default shall have occurred and (ii) be continuing. Without limiting other rights of the Collateral Agent with respect to the Collateral Account, the Collateral Agent may, at any time and without notice to, or consent from, the Grantor, transfer, or direct the transfer of, funds from the Deposit Accounts Collateral Account to satisfy the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and Grantor’s obligations under the sole control Loan Documents if an Event of Default shall have occurred and dominion of the Administrative Agreement and subject to this Agreementbe continuing.
Appears in 1 contract
Maintaining the Account Collateral. So Subject to the terms of the Collateral Trust Agreement and so long as any Loan or any other Obligation of any Loan Party under any Loan Document shall remain unpaidSecured Obligation, and if applicable, any Letter of Credit shall be outstanding, Hedging Obligation (as defined in any Junior Lien Document) secured by the Collateral or commitment to advance funds to a Grantor which if advanced would constitute Secured Hedge Agreement Obligations shall be in effect or any Lender Party shall have any Commitmenteffect:
(a) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) No later than 120 days after any the date hereof, as such requestdate may be extended on the terms permitted by the Second Lien Indenture or Collateral Trust Agreement, at all times thereafter, each Grantor shall will maintain all Account Collateral only with the Collateral Trustee or with a bank (ithe “Pledged Account Bank”) cause each bank with whom a Deposit Account is maintained to agree that has agreed, in a record authenticated by the Grantor, the Administrative Agent Collateral Trustee and such bank (a “the Pledged Account Bank”), to (A) comply with instructions originated by the Administrative Agent Collateral Trustee directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice Grantor following the occurrence of Exclusive Control”) shall be withdrawn in the event such Specified a Junior Lien Event of Default shall no longer be continuing and (iiB) waive or subordinate in favor of the Administrative Agent Collateral Trustee all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent Collateral Trustee (the an “Account Control Agreement”) or (ii) instruct all account debtors ); provided that, with respect to make all payments to one or more other Pledged any newly created Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. ThereafterCollateral, each Grantor will maintain all be required to comply with the foregoing requirements with respect to such newly created Account Collateral only no later than sixty (60) days after the creation of such Account Collateral; provided further, that no Account Control Agreement shall be required in respect of deposit, checking or securities accounts the individual balance of which does not exceed $2,500,000 and does not exceed, when aggregated with the Administrative Agent or Pledged balance of all other such deposit, checking and securities accounts for which no corresponding Account Banks unless such Specified Default shall no longer be continuingControl Agreement is in effect, $10,000,000.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless unless, (iA) the Administrative Agent Collateral Trustee shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and (iiB) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent Collateral Trustee shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative AgentCollateral Trustee, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent Collateral Trustee of such Account Control Agreement or supplement, Schedule V VII hereto shall be automatically amended to include such Deposit Account). During the continuation Upon a Grantor’s termination of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate termination of any Account Collateral, except that the such Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written shall promptly give notice of such termination to the Collateral Trustee and deliver to the Collateral Trustee and the Trustee a certificate of an acceptable officer of such Grantor detailing the Account Collateral to be terminated and certifying that such termination is permitted under the Secured Debt Documents (and, upon such termination, Schedule V VII hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account); provided, however, that, unless the Collateral Trustee has given its express consent, no Grantor may (1) terminate any bank as a Pledged Account Bank with respect to any Cash Collateral Account, (2) terminate any Cash Collateral Account, or (3) terminate any bank as a Pledged Account Bank if a Junior Lien Event of Default has occurred and is continuing.
(ec) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank listed in Schedule VII or to the a Cash Collateral Account and (ii) notify all Obligors Persons obligated at any time to make any payment to such Grantor for any reason that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement listed in Schedule VII hereto or to the a Cash Collateral Account, in each case so that the Administrative Agent Collateral Trustee shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative AgentCollateral Trustee.
(fd) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent The Collateral Trustee shall have sole right to direct the disposition of funds with respect to each of the any Cash Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the any Cash Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the any Cash Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will will, except on the Collateral Trustee’s instructions, be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower Company or any other Person from the any Cash Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(ge) The Administrative Agent Subject to the terms of the Collateral Trust Agreement, if a Junior Lien Event of Default shall have occurred and be continuing, the Collateral Trustee may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Junior Lien Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the a Cash Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Second Lien Security Agreement (Terremark Worldwide Inc.)
Maintaining the Account Collateral. So long as any Loan Loans or any other Obligation of any Loan Party under any Loan Document Secured Obligations shall remain unpaid, any Letter of Credit shall be outstanding, unpaid or any Secured Hedge Debt Agreement shall be in effect or any Lender Party shall have any Commitmenteffect:
(a) If Each Grantor will maintain deposit accounts only with the Collateral Agent or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of 9 HN\1119607.7 funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the a “Deposit Account Control Agreement”); provided, however, this Section 5(a) shall not apply to (i) any deposit account with a principal balance that does not exceed, or has not exceeded within the past 12 months, $250,000 or (ii) instruct all that certain deposit account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be maintained with JPMorgan Chase Bank in Houston, Texas (reference Endeavour Operating CO 010 General – Enertia), unless and until the name and under the control principal balance of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.account on any day exceeds $250,000);
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or Deposit Account, and (ii) if so requested, deposit in the Collateral Account ora Pledged Deposit Account, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes in excess of $250,000 in the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.aggregate;
(c) If a Specified Default Each Grantor agrees that it shall have occurred and be continuing, concurrently with not close any Pledged Deposit Account or at terminate any time after entering into an Deposit Account Control Agreement with any Pledged Account BankAgreement, if requested by in each case, without the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to prior written consent of the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.Agent; and
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the The Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral Pledged Deposit Accounts to satisfy the Grantor’s obligations under the Loan Documents and (ii) transferCredit Documents, the Secured Hedging Agreements or direct the transfer ofLC Procurement Documents; provided, funds from the Deposit Accounts to that the Collateral AccountAgent may only exercise any such rights if an Event of Default shall have occurred and be continuing.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any other Obligation (other than Unaccrued Indemnity Claims) of any Loan Party under any Loan Document shall remain unpaidunpaid or unsatisfied, any Letter of Credit shall be outstandingoutstanding and not Cash Collateralized, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any CommitmentCommitment under the Credit Agreement:
(a) If No later than 60 days after the date hereof (or such later date as may be specified by the Collateral Agent in its sole discretion) and at all times thereafter, each Grantor will maintain all Account Collateral (other than (i) the accounts to be closed as indicated on Schedule VII provided such accounts are closed within nine months following the Closing Date and do not have a Specified Default shall have occurred balance in excess of the amount set forth on Schedule VII at any time, and be continuing and (ii) accounts specifically designated to the Administrative Agent in writing as (x) trust accounts (to the extent of amounts held therein in trust in the ordinary course of business on behalf of third parties who are not Loan Parties or Subsidiaries of Loan Parties) or (y) payroll accounts (the balances in which shall have so requestednot exceed in the aggregate for all accounts referred to in this clause (ii) $1,000,000 at any one time), within forty-five such accounts in subclauses (45x) days after any such requestand (y) of this Section 5(a)(ii) being referred to herein as “Restricted Accounts”) only with the Collateral Agent or with a bank (the “Pledged Account Bank”) that has agreed, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “Pledged Account Bank”), to (A) comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice Grantor following the occurrence of Exclusive Control”) shall be withdrawn in the event such Specified an Event of Default shall no longer be continuing and (iiB) waive or subordinate in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the an “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing).
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank (in each case unless (i) in respect of a Restricted Account or (ii) in respect of an account with a balance of less than $5,000, provided that the Administrative aggregate amount of all such accounts excluded under this clause (ii) shall not exceed $50,000) unless, (A) the Collateral Agent shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and (iiB) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V VII hereto shall be automatically amended to include such Deposit Account). During the continuation Upon a Grantor’s termination of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate termination of any Account Collateral, except that the such Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written shall promptly give notice of such termination to the Collateral Agent (and, upon such termination, Schedule V VII hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account); provided, however, that, unless the Collateral Agent has given its express consent, no Grantor may (1) terminate any bank as a Pledged Account Bank with respect to the Cash Collateral Account, (2) terminate the Cash Collateral Account, or (3) terminate any bank as a Pledged Account Bank if an Event of Default has occurred and is continuing.
(ec) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered (other than a Restricted Account) by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank listed in Schedule VII or to the Cash Collateral Account and (ii) notify all Obligors Persons obligated at any time to make any payment to such Grantor for any reason that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement listed in Schedule VII hereto or to the Cash Collateral Account, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Collateral Agent.
(fd) Upon the occurrence and during the continuance of a Specified Default, the Administrative The Collateral Agent shall have sole right to direct the disposition of funds with respect to each of the Cash Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Cash Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Cash Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will will, except on the Collateral Agent’s instructions, be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Cash Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(ge) The Administrative If an Event of Default shall have occurred and be continuing, the Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Cash Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Term Loan or any other Obligation (other than Unaccrued Indemnity Claims) of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect unpaid or unsatisfied or any Lender Party shall have any CommitmentTerm Commitment under the Credit Agreement:
(a) If a Specified Default shall have occurred and No later than 15 days after the date hereof (or such later date as may be continuing and consented to by the Required Lenders (which consent may not be unreasonably withheld)), at all times thereafter, each Grantor will maintain all Account Collateral (other than accounts specifically designated to the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall in writing as (i) cause each trust accounts (to the extent of amounts held therein in trust in the ordinary course of business on behalf of third parties who are not Loan Parties or Subsidiaries of Loan Parties) or (ii) payroll accounts (the balances in which shall not exceed in the aggregate for all accounts referred to in this clause (ii) $3,000,000 at any one time), such accounts in clauses (i) and (ii) of this Section 5(a) being referred to herein as “Restricted Accounts”) only with the Collateral Agent or with a bank with whom a Deposit (the “Pledged Account is maintained to agree Bank”) that has agreed, in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “Pledged Account Bank”), to (A) comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice Grantor following the occurrence of Exclusive Control”) shall be withdrawn in the event such Specified an Event of Default shall no longer be continuing and (iiB) waive or subordinate in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the an “Account Control Agreement”) or (ii) instruct all account debtors ); provided that, with respect to make all payments to one or more other Pledged any newly created Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. ThereafterCollateral, each Grantor will maintain all be required to comply with the foregoing requirements with respect to such newly created Account Collateral only with no later than 5 days after the Administrative Agent or Pledged creation of such Account Banks unless such Specified Default shall no longer be continuingCollateral.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank (in each case unless (i) in respect of a Restricted Account or (ii) in respect of an account with a value of less than $25,000, provided that the Administrative aggregate value of all such accounts excluded under this clause (ii) shall not exceed $100,000) unless, (A) the Collateral Agent shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and (iiB) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V VII hereto shall be automatically amended to include such Deposit Account). During the continuation Upon a Grantor’s termination of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate termination of any Account Collateral, except that the such Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written shall promptly give notice of such termination to the Collateral Agent (and, upon such termination, Schedule V VII hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account); provided, however, that, unless the Collateral Agent has given its express consent, no Grantor may (1) terminate any bank as a Pledged Account Bank with respect to any Cash Collateral Account, (2) terminate any Cash Collateral Account, or (3) terminate any bank as a Pledged Account Bank if an Event of Default has occurred and is continuing.
(ec) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered (other than a Restricted Account) by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank listed in Schedule VII or to the a Cash Collateral Account and (ii) notify all Obligors Persons obligated at any time to make any payment to such Grantor for any reason that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement listed in Schedule VII hereto or to the a Cash Collateral Account, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Collateral Agent.
(fd) Upon the occurrence and during the continuance of a Specified Default, the Administrative The Collateral Agent shall have sole right to direct the disposition of funds with respect to each of the any Cash Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the any Cash Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the any Cash Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will will, except on the Collateral Agent’s instructions, be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the any Cash Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(ge) The Administrative If an Event of Default shall have occurred and be continuing, the Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the a Cash Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Second Lien Security Agreement (Terremark Worldwide Inc)
Maintaining the Account Collateral. So long as any Loan or any other Obligation Upon the occurrence of any Loan Party under any Loan Document shall remain unpaid, any Letter an Event of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:Default,
(a) If a Specified Default shall have occurred and be continuing and Each Grantor will maintain all Account Collateral only with the Administrative Agent shall or with banks (the “Pledged Account Banks”) that have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “the Pledged Account Bank”)Banks, to to:
(i) comply with instructions originated by the Administrative Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and Grantor and
(ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank Banks (including, without limitation, including claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D heretoC hereto (in the case of a combined Deposit Account and Securities Account) or of Exhibit B hereto (in any other case), or shall otherwise be in form and substance reasonably satisfactory to to, and as negotiated in good faith by, the Administrative Agent (such agreements together being the “Account Control AgreementAgreements”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing ), provided that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all shall have up to 30 days following the date hereof to provide any such Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingControl Agreement.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative AgentAccount.
(c) If a Specified Default shall have occurred and be continuingExcept for any deposit account holding LC Collateral, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each no Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless unless:
(i) the Administrative Agent shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and account, and
(ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto account. No Grantor shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the a Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, Account if it gives the Administrative Agent at least ten (10) 10 days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(ed) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), :
(i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and Account, and
(ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(fe) Upon the occurrence So long as no Event of Default shall have occurred and during the continuance of a Specified Defaultbe continuing, the Administrative Agent each Grantor shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the its Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(gf) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) a Grantor transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral AccountLender Hedging Contracts if an Event of Default shall have occurred and be continuing.
(hg) Upon the request by occurrence and during the continuance of any Event of Default, the Administrative Agent at any time or shall be authorized to send to each Pledged Account Bank a Notice of Exclusive Control as otherwise required defined in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this any Account Control Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any other Obligation Until Full Payment of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any the Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:Obligations (the “Discharge”):
(a) If Each Grantor will maintain deposit accounts (other than an account exclusively used for payroll, payroll taxes, employee benefits or other similar fiduciary obligations, any trust account, any zero-balance disbursement account (i.e., any account used only for disbursement purposes in which a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account balance of zero is maintained by automatically transferring funds from another account in an amount only large enough to agree in a record authenticated by cover checks presented) and any account used to settle foreign exchange trades or accounts having an aggregate balance of not more than $250,000 or the Grantoraccount number 8666823891 maintained with Bank of America, N.A. so long as the ending daily balance of such account does not exceed $500,000 (collectively, the Administrative Agent and such “Excluded Accounts”)), including the Collateral Proceeds Account, only with a bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Trustee to comply with instructions originated by the Administrative Agent Collateral Trustee directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Trustee (in the cases of the Pledged Deposit Accounts and Cash Collateral Account, with provisions instructing such bank that pursuant to the Intercreditor Agreement, instructions originated by the ABL Agent control) (the a “Deposit Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing).
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Cash Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or and (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Pledged Deposit Account or the Cash Collateral Account, at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default ; provided that only proceeds of the Noteholder First Lien Collateral shall have occurred be deposited in the Collateral Proceeds Account and be continuing, each Grantor hereby authorizes the Administrative Agent shall so instruct each such Person, shall so deposit proceeds of any Collateral and other cash and shall take all other actions necessary to notify each Obligor that such payments have been assigned give effect to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agentintent of this proviso.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer Subject to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account BankIntercreditor Agreement, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent Trustee may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Collateral Proceeds Account and, if applicable, the Pledged Deposit Accounts or the Cash Collateral Account, as the case maybe, to satisfy the Grantor’s obligations under the Loan Documents Obligations if a Priority Lien Default shall have occurred and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Accountbe continuing.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Security Agreement (Solo Cup CO)
Maintaining the Account Collateral. So long as any Loan Accommodation or any other Secured Obligation secured by the Pledge and Security Agreement (other than contingent indemnification claims as to which no valid demand has been made, “Unmatured Surviving Obligations”) of any Loan Party under any Loan Credit Document shall remain unpaid, any Letter of Credit unpaid or shall be outstanding, any Secured Hedge Eligible Cash Management Agreement or Eligible Hedging Agreement shall be in effect or any Lender Party shall have any Commitment:
(ai) If a Specified Default shall have occurred and be continuing and Commencing on the date that is 60 days following the Closing Date (or such later date as the Administrative Agent shall have so requested, within forty-five (45) days after any such requestmay reasonably agree), each U.S. Grantor shall (i) cause each bank will maintain deposit accounts only with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the financial institution acting as Administrative Agent and such or Collateral Agent hereunder or with a bank (a “Pledged Account Bank”)) that has agreed with such U.S. Grantor and the Administrative Agent or the Collateral Agent, as applicable, to comply with instructions originated by the Administrative Agent or the Collateral Agent, as applicable, directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such U.S. Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be agreement in form and substance reasonably satisfactory to the Administrative Agent and such U.S. Grantor (the a “Deposit Account Control Agreement”); provided, however, that this Section 6.01(15)(c) shall only apply to accounts maintained in the United States and shall not apply to deposit accounts (A) used solely as a tax or payroll account, escrow account, trust account, xxxxx cash account or flexible spending account, in each case maintained in the ordinary course of business or (B) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party deposit accounts to the extent that a Trigger the aggregate amount on deposit with all such other deposit accounts does not exceed U.S. $10,000,000, or such lower amount as may be required under the Existing Credit Agreement at any time.
(ii) The Administrative Agent may (or may request that the Collateral Agent), at any time during the continuance of an Event has occurred) of Default, request that each U.S. Grantor instruct each Person obligated at any time to make any payment to such U.S. Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Collateral Account orAccount, if permitted by the Administrative Agent, except that such U.S. Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account maintained with a Pledged or Collateral Account Bank and/or as of the date hereof, (ii) if so requested, deposit making payments to such U.S. Grantor of less than $250,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security of the Guaranteed Parties in accordance with this Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the any.
(iii) The Administrative Agent to notify each Obligor may (or may request that such payments have been assigned to the Administrative Agent as collateral hereunder Collateral Agent), at any time during the continuance of an Event of Default and to instruct such Obligor to make all payments without notice to, or consent from, any U.S. Grantor, transfer, or direct the transfer of, funds from the Pledged Deposit Accounts to the Collateral Account or as otherwise directed by to satisfy the Administrative AgentSecured Obligations under the Security and Pledge Agreement and other Credit Documents.
(civ) If Upon any termination by a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with U.S. Grantor of any Pledged Account BankDeposit Account, if requested by the Administrative Agent, each such U.S. Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless promptly (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicabletransferred within the United States, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Pledged Deposit Account Account, to the extent future payments continue to be made within the United States, to make all future payments to another Pledged Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent or the Collateral Agent, as applicable, shall have a continuously perfected security interest in such Account CollateralCollateral Account, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Open Text Corp)
Maintaining the Account Collateral. So long as any Loan Term Loans or any other Obligation of any Loan Party under any Loan Document Secured Obligations shall remain unpaid, any Letter of Credit shall be outstanding, unpaid or any Secured Hedge Hedging Agreement or Secured Reimbursement Agreement shall be in effect or any Lender Party shall have any Commitmenteffect:
(a) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank Each Grantor will maintain deposit accounts only with whom the Collateral Agent or with a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the a “Deposit Account Control Agreement”); provided, however, this Section 5(i) shall not apply to deposit accounts (i) with an aggregate balance of no more than $100,000 at any time or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to operated solely as a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.payroll account;
(bii) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (iA) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or Deposit Account, and (iiB) if so requested, deposit in the Collateral Account ora Pledged Deposit Account, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default Grantor in excess of $100,000 in the aggregate; provided, however, this Section 5(ii) shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned not apply with respect to the Administrative Agent as collateral hereunder and Dutch Subsidiaries with respect to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.any of their deposit accounts;
(ciii) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will shall not add close any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Deposit Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral AccountAgreement, in each case so that without the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each prior written consent of the Collateral Account, the L/C Collateral Account, Agent; and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(giv) The Administrative Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral Pledged Deposit Accounts to satisfy the Grantor’s obligations under the Loan Documents and (ii) transferCredit Documents; provided, or direct the transfer of, funds from the Deposit Accounts to that the Collateral AccountAgent may only exercise any such rights if an Event of Default shall have occurred and be continuing.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and Subject to Section 5.01(r)(ii) of the Credit Agreement, each Grantor will maintain all Account Collateral only with the Administrative Agent shall or with banks (the “Pledged Account Banks”) that have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance satisfactory to the Administrative Agent (the “Account Control Agreement”); provided, however, this Section 5(a) or (ii) instruct all account debtors shall not apply to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be Other Deposit Accounts listed in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingSchedule VIII hereto.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral an Other Deposit Account or, if permitted by the Administrative Agent, to or a Deposit Account maintained with a Pledged Account Bank and/or and (ii) if so requested, deposit in the Collateral an Other Deposit Account or, if permitted by the Administrative Agent, or a Deposit Account or pay to the Administrative Agent for deposit in a Deposit Account, at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V VII hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a an Other Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) 10 days’ prior written notice of such termination (and, upon such termination, Schedule V VIII hereto shall be automatically amended to delete such Pledged Account Bank and Other Deposit Account).
(ed) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account listed in Part II of Schedule VII and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, listed in each case Part II of Schedule VII hereto so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(e) The Borrower may draw checks on, and otherwise withdraw amounts only from, the Deposit Accounts and in such amounts as may be required in the ordinary course of business (including, without limitation, to pay or prepay Debt outstanding under the Loan Documents).
(f) Upon the occurrence and during the continuance of a Specified Default, the The Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, Account and the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, Account and the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, Account and the L/C Collateral Account or the Deposit AccountsAccount, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, Account and the L/C Collateral Account or the Deposit Accounts (only to the extent so directed)Account, as the case may be.
(g) The Administrative Agent may, (i) at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents if an Event of Default shall have occurred and be continuing and (ii) at any time after the Collateral Account has been opened and without notice to, or consent from, the Grantor, transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
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Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation of any Loan Party under any Loan Document (other than contingent indemnity obligations not then due) shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect unpaid or any Lender Party shall have any Commitment:
(a) If a Specified Default shall Each Grantor will maintain all Account Collateral only with the Collateral Agent or with banks (the “Pledged Account Banks”) that have occurred and be continuing and the Administrative Agent shall have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Collateral Agent directing the disposition dispositions of funds in any Account the Cash Collateral Accounts without the further consent of the Grantor; provided that such instructions Grantor and pursuant to Section 2.05(c)(iii), (including any “Notice iv), (v), (vi), (vii) and (viii) of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Credit Agreement and (ii) waive or subordinate in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account CollateralCash Collateral Accounts, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent (the “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Collateral Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the The Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition and distribution of funds with respect to each the Cash Collateral Accounts (subject to Section 2.05(c) of the Collateral AccountCredit Agreement), the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Cash Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Cash Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may bethat upon an Event of Default, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Cash Collateral Account, the L/C Collateral Account or the Deposit Accounts (only subject to Section 2.05(c) of the extent so directedCredit Agreement), as the case may be.
(gc) The Administrative Collateral Agent may, at any time and without notice to, or consent from, the Grantor, transfer, or direct the transfer of, funds from the Cash Collateral Accounts to satisfy the Grantor’s obligations under the Loan Documents if an Event of Default shall have occurred and be continuing (isubject to Section 2.05(c) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement).
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Maintaining the Account Collateral. So long as any Loan Accommodation or any other Secured Obligation secured by the Security and Pledge Agreement (other than contingent indemnification claims as to which no valid demand has been made, “Unmatured Surviving Obligations”) of any Loan Party under any Loan Credit Document shall remain unpaid, any Letter of Credit unpaid or shall be outstanding, any Secured Hedge Eligible Cash Management Agreement or Eligible Hedging Agreement shall be in effect or any Lender Party shall have any Commitment:
(ai) If a Specified Default shall have occurred and be continuing and Commencing on the date that is 60 days following the Effective Date (or such later date as the Administrative Agent shall have so requested, within forty-five (45) days after any such requestmay reasonably agree), each U.S. Grantor shall (i) cause each bank will maintain deposit accounts only with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the financial institution acting as Administrative Agent and such or Collateral Agent hereunder or with a bank (a “Pledged Account Bank”)) that has agreed with such U.S. Grantor and the Administrative Agent or the Collateral Agent, as applicable, to comply with instructions originated by the Administrative Agent or the Collateral Agent, as applicable, directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such U.S. Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be agreement in form and substance reasonably satisfactory to the Administrative Agent and such U.S. Grantor (the a “Deposit Account Control Agreement”); provided, however, that this Section 6.01(15)(c) shall only apply to accounts maintained in the United States and shall not apply to deposit accounts (A) used solely as a tax or payroll account, escrow account, trust account, xxxxx cash account or flexible spending account, in each case maintained in the ordinary course of business or (B) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party deposit accounts to the extent that a Trigger the aggregate amount on deposit with all such other deposit accounts does not exceed U.S. $20,000,000, or such lower amount as may be required under the Revolving Credit Agreement at any time.
(ii) The Administrative Agent may (or may request that the Collateral Agent), at any time during the continuance of an Event has occurred) of Default, request that each U.S. Grantor instruct each Person obligated at any time to make any payment to such U.S. Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Collateral Account orAccount, if permitted by the Administrative Agent, except that such U.S. Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account maintained with a Pledged or Collateral Account Bank and/or as of the date hereof, (ii) if so requested, deposit making payments to such U.S. Grantor of less than $250,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security of the Guaranteed Parties in accordance with this Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the any.
(iii) The Administrative Agent to notify each Obligor may (or may request that such payments have been assigned to the Administrative Agent as collateral hereunder Collateral Agent), at any time during the continuance of an Event of Default and to instruct such Obligor to make all payments without notice to, or consent from, any U.S. Grantor, transfer, or direct the transfer of, funds from the Pledged Deposit Accounts to the Collateral Account or as otherwise directed by to satisfy the Administrative AgentSecured Obligations under the Security and Pledge Agreement and other Credit Documents.
(civ) If Upon any termination by a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with U.S. Grantor of any Pledged Account BankDeposit Account, if requested by the Administrative Agent, each such U.S. Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless promptly (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicabletransferred within the United States, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Pledged Deposit Account Account, to the extent future payments continue to be made within the United States, to make all future payments to another Pledged Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent or the Collateral Agent, as applicable, shall have a continuously perfected security interest in such Account CollateralCollateral Account, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Open Text Corp)
Maintaining the Account Collateral. So long as any Loan or any Until (i) all Loans and other Obligation Obligations of any Loan Party under any Loan Document shall remain unpaidthe Grantors have been paid, any Letter (ii) no Letters of Credit shall be remain outstanding, (iii) no Secured Hedging Agreements or Secured Cash Management Agreements remain in effect, (iv) no Lender has any Secured Hedge Agreement shall Commitment and (v) either (x) all Senior Note Obligations have been paid or (y) the Collateral Agent has received an opinion of counsel to the Grantors in form and substance satisfactory to the Collateral Agent that the Senior Notes are not required to be in effect or secured by any Lender Party shall have any Commitment:of the Collateral (the satisfaction of all such conditions, the satisfaction of the "RELEASE CONDITIONS"):
(a) If a Specified Default shall have occurred and be continuing and Except as contemplated by Section 6.16 of the Administrative Agent shall have so requested, within forty-five (45) days after any such requestCredit Agreement, each Grantor shall will maintain all Account Collateral only with a Lender or an Affiliate of a Lender (ia "PLEDGED ACCOUNT BANK") cause each bank with whom a Deposit Account is maintained to agree that has agreed, in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”), to (i) comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral maintained with such Pledged Account Bank without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate in favor of the Administrative Collateral Agent all claims of the such Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing"ACCOUNT CONTROL AGREEMENT").
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party Except to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (set forth in an “Obligor”) to make such payment to applicable Account Control Agreement, if any, the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, Deposit Account and the L/C LC Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, Deposit Account and the L/C LC Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only subject solely to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary set forth in any other agreement relating to the Collateral Accountan applicable Account Control Agreement, the L/C Collateral Account or the Deposit Accounts, as the case may beif any, that no amount (including, without limitation, interest on Temporary Cash Equivalents Investments credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower Company or any other Person from the Collateral Account, the L/C Collateral Deposit Account or the Deposit Accounts (only to the extent so directed)LC Collateral Account, as the case may be.
(gc) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an So long as no Event of Default shall have occurred and be continuing continuing, the Collateral Agent will pay and release to the Company or at its order or, at the request of the Company, to the Administrative Agent to be applied to the Obligations of the Company (or, to the extent permitted by the Credit Agreement, to the Trustee to be applied to the Senior Note Obligations), (x) in the case of the LC Collateral Account, such amount, if any, as is then on deposit in the LC Collateral Account to the extent permitted to be released under the terms of the Credit Agreement and (y) in the case of the Collateral Deposit Account, the amount, if any, by which the aggregate principal amount of the Cash and Temporary Cash Investments credited to the Collateral Deposit Account exceeds the aggregate amount of the outstanding Secured Obligations at such time.
(d) Notwithstanding anything to the contrary set forth in this Agreement (including this Section 6), it is understood and agreed that (i) transfer, or direct the transfer of, funds from the with respect to Account Collateral maintained with National Westminster Bank, the applicable Grantors shall close the applicable accounts within three weeks of the Effective Date and transfer any amounts contained therein to satisfy other accounts satisfying the Grantor’s obligations under the Loan Documents requirements of this Section 6, and (ii) transferwith respect to Account Collateral maintained with ABN AMRO Bank, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit AgreementN.V., the Borrower applicable Grantors shall immediately open a letter use commercially reasonable efforts to comply with the provisions of credit deposit account (this Section 6 as promptly as practicable after the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this AgreementEffective Date.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit that has not been cash collateralized (as provided in the Credit Agreement) shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any CommitmentCommitment or any Bilateral Obligation contract with Secured Party shall be in effect:
(a) If a Specified Default shall Each Grantor will maintain all Account Collateral (other than Account Collateral maintained in the Permitted Unblocked Accounts in the ordinary course of business consistent with past practices) only with the Collateral Agent or with banks (the "PLEDGED ACCOUNT BANKS") that have occurred and be continuing and agreed within the Administrative Agent shall have so requestedtime period specified in Section 5.01(r) of the Credit Agreement, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the applicable Pledged Account Bank”), to upon notice from the Collateral Agent that an Event of Default has occurred and is continuing, comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that each such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bankagreement, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingan "ACCOUNT CONTROL AGREEMENT").
(b) If a Specified Default shall have occurred and be continuing and Except for the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified DefaultPermitted Unblocked Accounts, each Grantor agrees that it will not add any bank in the United States that maintains a deposit account for such Grantor or open any new deposit account in the United States with any then existing Pledged Account Bank unless (i) the Administrative Collateral Agent shall have received at least ten (10) 10 days’ ' prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Accountother deposit account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Bank Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Bank Account, if it gives the Administrative Collateral Agent at least ten (10) 10 days’ ' prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Bank Account).
(ec) To the extent Section 6(a) above is applicable, if during the continuation Upon any termination by a Grantor of any Specified DefaultBank Account by such Grantor, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) immediately transfer all funds and property held in such terminated Deposit Bank Account to another Deposit Bank Account covered listed in Schedule V or a new Bank Account that is permitted by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and clause (iib) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Accountof this Section 5, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(fd) Upon the occurrence If an Event of Default has occurred and during the continuance of a Specified Defaultis continuing, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s 's obligations under the Loan Documents and (ii) Documents. As soon as reasonably practicable after any such transfer, or direct the transfer of, funds from the Deposit Accounts Collateral Agent agrees to give written notice thereof to the Collateral Accountapplicable Grantor.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any other Obligation Prior to the Discharge of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any CommitmentFirst Lien Obligations:
(a) If Each Grantor will maintain deposit accounts and securities/deposit accounts only with the Depositary in accordance with the terms of the Security Deposit Agreement, with the financial institution acting as First Lien Collateral Agent hereunder or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the First Lien Collateral Agent to comply with instructions originated by the Administrative First Lien Collateral Agent directing the disposition of funds in any Account Collateral such deposit account or securities/deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative First Lien Collateral Agent (the a “Securities/Deposit Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged provided that no Securities/Deposit Account Banks by instructing that such payments be remitted to a post office box which Control Agreement shall be required in the name and under the control respect of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory any securities account or deposit account to the Administrative Agent. Thereafterextent the amount on deposit in, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless credited to, such Specified Default shall no longer be continuingaccount does not exceed $300,000.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requestedto transfer to the Revenue Account, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to equal
(c) Each Grantor may draw checks on, and otherwise transfer or withdraw amounts from, the credit balance of the Deposit Account Pledged Accounts in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, amounts as may be required in the Administrative Agent may do so without further notice to any Grantorordinary course of business.
(d) During the continuation Upon any termination by a Grantor of any Specified DefaultPledged Account, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing will immediately transfer all funds and Property held in such terminated Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or to another Pledged Account Bank that is not or the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Revenue Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To From and after the extent Section 6(a) above is applicable, if occurrence of and during the continuation continuance of any Specified a First Lien Event of Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect theretoupon the request of the First Lien Collateral Agent, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral Pledged Accounts and Securities/Deposit Account Control Agreements upon request by the Administrative AgentAgreements.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the The First Lien Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral Pledged Accounts to satisfy the Grantor’s obligations under the Loan First Lien Documents if any payment default that is a First Lien Event of Default shall have occurred and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Accountbe continuing.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: First Lien Security Agreement (Talen Energy Supply, LLC)
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default From and after the date which is 60 days after the date hereof (as such date may be extended on the terms permitted by the Credit Agreement and provided that if such Grantor has used commercially reasonable efforts to obtain the Account Control Agreement described below, such Grantor shall have occurred and be continuing and an additional 30 days to either (A) obtain such Account Control Agreement or (B) move the Administrative Agent shall have so requested, within forty-five (45) days after any such requestapplicable Account Collateral to a Pledge Account Bank that is party to an Account Control Agreement), each Grantor shall will maintain all Account Collateral only with the Collateral Agent or with banks (ithe “Pledged Account Banks”) cause each bank with whom a Deposit Account is maintained to agree that have agreed, in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment, except for debits by the Pledged Account Banks for fees, charges or returned item amounts) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the “Account Control Table of Contents Agreement”); and each deposit or securities account subject to an account control agreement is referred to herein as a “Pledged Account”) or (ii) instruct all account debtors and, in the case of any such Account Control Agreement entered into prior to make all payments to one or more other the date hereof, the Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be have, within the timeframe specified above (as extended, where applicable) acknowledged in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, an authenticated record in form and substance satisfactory to the Administrative AgentCollateral Agent the continued effectiveness of such Account Control Agreement with respect to the Secured Obligations under the Loan Documents); provided, however, that this Section 5(a) shall not apply to (i) deposit accounts permitted under clause (c) below and (ii) deposit accounts subject to Liens permitted under Section 7.01(e), (f), (h), (m), (n), (p) or (q) of the Credit Agreement to the extent permitted thereunder (collectively, the deposit accounts referred to in subclauses (i) and (ii) are referred to herein as “Other Deposit Accounts”). Thereafter, each Grantor will maintain Schedule VIII sets forth a list as of the date hereof of all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingOther Deposit Accounts.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately instruct each Person (including any Governmental Party to deposit in a Pledged Account or the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment Collateral Account or pay to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, Agent for deposit in the Collateral Account orAccount, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If , other than (i) xxxxx cash that in the ordinary course of business is kept at such Grantor’s offices, (ii) checks received at such Grantor’s offices that in the ordinary course of business are not deposited into a Specified Default shall have occurred deposit account on a daily basis but which are deposited at least once per week and be continuing, each Grantor hereby authorizes (iii) cash deposited into an Other Deposit Account in compliance with clause (i) of the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral definition of Other Deposit Account or related to a Lien granted as otherwise directed by provided under clause (ii) of the Administrative Agentdefinition of Other Deposit Account.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (except with respect to any new deposit account the individual balance of which does not exceed $100,000 and does not exceed when aggregated with all other Other Deposit Accounts, other than those referred to in subclause (a)(ii) above, $500,000, and except with respect to deposit accounts referred to in subclause (a)(ii) above) (i) the Administrative Collateral Agent shall have received at least ten (10) daysthree Business Days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V VII hereto shall be automatically amended to include such Other Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Pledged Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit a Pledged Account, if it gives the Administrative Collateral Agent at least ten (10) daysthree Business Days’ prior written notice of such termination (and, upon such termination, Schedule V VII hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(ed) To the extent Section 6(a) above is applicable, if during the continuation Upon any termination by a Grantor of any Specified DefaultPledged Account by such Grantor, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) immediately transfer all funds and property held in such terminated Deposit Pledged Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank listed in Schedule VII or otherwise permitted hereunder or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Collateral Agent.
(fe) Upon the occurrence and during the continuance of a Specified Default, the Administrative The Collateral Agent shall have sole right in accordance with the Credit Agreement to direct the disposition of funds with respect to each of the Collateral Account, the Table of Contents L/C Collateral Account, Account and, if Section 6(a) shall be applicableafter the occurrence and during the continuance of an Event of Default and the exercise by the Collateral Agent of its right to exclusive control over the Pledged Accounts, the Deposit Pledged Accounts; and it shall be a term and condition of each of the Collateral Account, Account and the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, Account or the L/C Collateral Account or the Deposit AccountsAccount, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, Account or the L/C Collateral Account Account; and it shall be a term and condition of the Pledged Accounts that, after the exercise by the Collateral Agent of its right to exclusive control over the Pledged Accounts, notwithstanding any term or the Deposit Accounts (only condition to the extent so directed)contrary in any other agreement relating to the Pledged Accounts, as no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the case may beaccount of, or withdrawn by or for the account of, the Borrower or any other Person from the Pledged Accounts.
(gf) The Administrative Collateral Agent may, at any time time, after the occurrence and during the continuance of an Event of Default, and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents (to the extent such obligations are due and payable) if an Event of Default shall have occurred and be continuing and (ii) transfer, or direct the transfer of, funds from the Deposit Pledged Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or , in each case, as otherwise required in order to Cash Collateralize Letters of Credit pursuant to permitted under the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Security Agreement (Leap Wireless International Inc)
Maintaining the Account Collateral. So long as any Loan the Loans or any other Obligation of any Loan Party under any Loan Document Document, under any Secured Cash Management Agreement, or under any Secured Interest Rate Protection Agreement, shall remain unpaid, any Letter upon the occurrence and during the continuance of Credit shall be outstandingan Event of Default, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitmentat the request of the Agent:
(a) If Each Grantor will maintain deposit accounts only with the financial institution acting as Agent hereunder or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Agent to comply with instructions originated by the Administrative Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent (the a “Deposit Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing).
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or and (ii) if so requested, deposit in a Pledged Deposit Account or the Collateral Account orAccount, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Each Grantor will instruct such each Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may directDay, in same day funds, an amount equal to the credit balance of the Pledged Deposit Account in at such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During The Agent may, at any time and without notice to, or consent from, the continuation Grantor, transfer, or direct the transfer of, funds from the Pledged Deposit Accounts or the Collateral Account to satisfy the Grantor’s obligations under the Loan Documents if an Event of any Specified Default, each Default shall have occurred and be continuing.
(e) Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then then-existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days10 Business Days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of received a bank or Pledged Account Bank that is not the Administrative Agent, an Deposit Account Control Agreement authenticated by such new bank and such Grantor, Grantor or a supplement to an existing Deposit Account Control Agreement with such then then-existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Deposit Account Control Agreement or supplement, Schedule V hereto II shall automatically be automatically amended to include such Deposit Accountdeposit account). During the continuation of any Specified Default, each .
(f) Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, deposit account and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, deposit account if it gives the Administrative Agent at least ten (10) days10 Business Days’ prior written notice of such termination (and, and upon such termination, Schedule V II hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Accountsuch deposit account).
(e) To the extent Section 6(a) above is applicable, if during the continuation . Upon any termination by a Grantor of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement deposit account or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account deposit account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account deposit account listed in Schedule II and (ii) notify all Obligors that were making payments to such Deposit Account deposit account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement deposit account listed in Schedule II or to the Collateral Account, in each case so that the Administrative Agent shall Agent, for the benefit of the Secured Parties, will have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any other Obligation Until the Payment in Full of any Loan Party under any Loan Document shall remain unpaidthe Secured Obligations, any Letter subject to the terms and provisions of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitmentthe ABL Intercreditor Agreement:
(a) If Each Grantor will maintain Deposit Accounts only with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any such Deposit Account Collateral without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Borrower and Collateral Agent (the each, a “Deposit Account Control Agreement”); provided, however, that this Section 6(a) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory not apply to the Administrative Agent. Thereafterfollowing Deposit Accounts (collectively, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will “Excluded Deposit Accounts”): (i) immediately instruct each Person accounts used solely as local store level accounts (including any Governmental Party to the extent that the aggregate amount on deposit with such local store level accounts does not exceed $3,500,000 (other than temporary increases due to high sales volume for any consecutive five (5) day period beginning on a Trigger Friday of any week and ending on the Tuesday of the following week), in each case maintained in the ordinary course of business, (ii) zero balance accounts, (iii) accounts constituting (and solely used for) a tax or payroll account, escrow account, trust account, xxxxx cash account (to the extent that the aggregate amount on deposit with such xxxxx cash accounts does not exceed $100,000), pension, employee benefits or other trust purposes, flexible spending benefit account, or for the benefit of any other party other than any Grantor or Subsidiary, in each case maintained in the ordinary course of business, or (iv) other Deposit Accounts to the extent that the aggregate amount on deposit with each Deposit Account does not exceed $250,000 at any time. Each Grantor agrees that at no time shall the aggregate amount on deposit in all Deposit Accounts referred to in the foregoing clause (iv) for which there is not in effect a Deposit Account Control Agreement exceed $500,000. So long as (x) prior to the Discharge of ABL Obligations, no Triggering Event has occurredoccurred and is continuing and (y) after the Discharge of ABL Obligations, no Event of Default has occurred and is continuing, the Collateral Agent agrees that (i) it shall not issue any instructions to any Pledged Account Bank or withhold any withdrawal rights from such Grantor with respect to funds from time to time credited to any Deposit Account and (ii) upon the termination of all such Triggering Events or Events of Default, as applicable, the Collateral Agent shall thereafter take such action, at the expense of such Grantor, as shall be reasonably necessary to reconvey to such Grantor the right to give instructions directing the disposition of funds credited to any such Deposit Account. Notwithstanding anything contained herein to the contrary, each Grantor shall transfer, or direct the transfer of, funds from its local store level accounts and credit card processors to a cash concentration account that shall be a Pledged Deposit Account within three (3) Business Days (or such longer period as the Collateral Agent may agree in its sole discretion) of such funds being deposited.
(1) prior to the Discharge of ABL Obligations, after the occurrence and during the continuance of a Triggering Event and (2) after the Discharge of ABL Obligations, after the occurrence and during the continuance of an Event of Default, (x) each Grantor will promptly instruct each Person obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Collateral Account (or, if permitted constituting proceeds of Term Priority Collateral, to the Term Loan Priority Account, or as otherwise agreed by the Administrative Collateral Agent), except that such Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account maintained with a Pledged or Collateral Account Bank and/or as of the date hereof, (ii) if so requested, deposit making payments to such Grantor less than $100,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security interest of the Secured Parties in accordance with the Term Loan Agreement, if permitted any; and (y) each Grantor shall cause all cash receipts and collections received by such Grantor from all sources, including, without limitation, all available cash receipts from the Administrative Agent, a Deposit Account at the end sale of each Business DayInventory and other assets (whether or not constituting Collateral), all proceeds of Collateral collections of Receivables (including, without limitation, all Credit Card Receivables), all net proceeds and all other cash payments received by a Grantor from any Person or from any source or on account of such Grantor. If a Specified Default shall have occurred Transfer or other transaction or event, and the proceeds of all credit card charges to be continuingdeposited into a Pledged Deposit Account or the Collateral Account (or, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned if constituting proceeds of Term Priority Collateral, to the Administrative Agent Term Loan Priority Account, or as collateral hereunder and to instruct such Obligor to make all payments otherwise agreed by the Collateral Agent). Notwithstanding the foregoing, prior to the Discharge of ABL Obligations (as defined in the ABL Intercreditor Agreement), the proceeds of ABL Priority Collateral may be deposited into the Collateral Account (or as otherwise agreed to by the Collateral Agent), and after the Discharge of ABL Obligations, the proceeds of all Collateral shall be deposited into the Term Loan Priority Account or as otherwise directed agreed to by the Administrative Collateral Agent.
(c) If [Reserved].
(d) If, at any time (i) prior to the Discharge of ABL Obligations, after the occurrence and during the continuance of a Specified Default Triggering Event and (ii) after the Discharge of ABL Obligations, after the occurrence and during the continuance of an Event of Default, any cash or Cash Equivalents owned by any Grantor (other than amounts on deposit in Excluded Deposit Accounts) are deposited to any account, or held or invested in any manner, other than in a Pledged Deposit Account, the Collateral Account or the Term Loan Priority Account, the Collateral Agent may require the applicable Grantor to close such account and have all funds therein transferred to a Pledged Deposit Account, and all future deposits made to a Pledged Deposit Account.
(e) In the event that the Collateral Agent shall have delivered a “Notice of Exclusive Control” (as defined in any applicable Deposit Account Control Agreement) to a Pledged Account Bank at which a Pledged Deposit Account is held, and thereafter (i) prior to the Discharge of ABL Obligations, no Triggering Event shall have occurred and be continuing and (ii) after the Discharge of ABL Obligations, no Event of Default hasshall have occurred and isbe continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct Collateral Agent shall deliver a written notice to such Pledged Account Bank to transfer to rescinding the Collateral Account, at the end Notice of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any GrantorExclusive Control previously delivered.
(df) During the continuation Upon any termination by a Grantor of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an or other account if a Deposit Account Control Agreement maintained with a Pledged Account Bank is entered into in respect of such other account or to the Collateral Account (or the Term Loan Priority Account, as applicable) and (ii) notify all Obligors that were making payments to such Pledged Deposit Account to make all future payments to another Pledged Deposit Account maintained with or other account if a Pledged Account Bank covered by an Deposit Account Control Agreement is entered into in respect of such other account or to the Collateral Account (or the Term Loan Priority Account, as applicable), in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent mayNotwithstanding anything in this Section 6 to the contrary, at any time and without notice toprior to the Discharge of Term Obligations (as defined in the ABL Intercreditor Agreement), or consent fromto the extent required by the ABL Intercreditor Agreement, the Grantor, if an Event proceeds of Default Term Priority Collateral shall have occurred and be continuing (i) transfer, deposited into the Term Loan Priority Account or direct the transfer of, funds from the Account Collateral as otherwise agreed to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant Agent. Prior to the Credit AgreementDischarge of ABL Obligations, the Borrower Grantors shall immediately open a letter not deposit or cause to be deposited any funds into the Term Loan Priority Account other than proceeds of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this AgreementTerm Priority Collateral.
Appears in 1 contract
Maintaining the Account Collateral. So Following the First Priority Lien Satisfaction Date and so long as any Loan or any Parity Lien Obligations (other Obligation of any Loan Party under any Loan Document than indemnification obligations that are not yet due and payable) which are accrued and payable shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitmentunpaid and unsatisfied and subject to the Intercreditor Agreement:
(a) If a Specified Default shall Each Grantor will maintain all Designated Accounts only with the Collateral Trustee or with banks (the "Pledged Account Banks") that have occurred and be continuing and the Administrative Agent shall have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent Collateral Trustee and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Agent Collateral Trustee (as set forth in the Account Control Agreement) directing the disposition of funds in any Account Collateral the Designated Dynegy Second Lien Shared Security Agreement Accounts without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate (other than as agreed between any Pledged Account Bank and the Collateral Trustee) in favor of the Administrative Agent Collateral Trustee all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent Collateral Trustee (the “"Account Control Agreement”"); provided, however, this Section 6(a) or (ii) instruct all account debtors shall not apply to make all payments Other Deposit Accounts listed in Schedule V hereto, as such Schedule may be updated from time to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingtime.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party Subject in all respects to the extent that a Trigger Event has occurredprovisions of Section 5(g) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Defaulthereof, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent Collateral Trustee shall have received at least ten (10) 10 days’ ' prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent Collateral Trustee shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative AgentCollateral Trustee, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent Collateral Trustee of such Account Control Agreement or supplement, Schedule V IV hereto shall be automatically amended to include such Other Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not may terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Designated Account, if it gives the Administrative Agent Collateral Trustee at least ten (10) 10 days’ ' prior written notice of such termination (and, upon such termination, Schedule V IV hereto shall be automatically amended to delete such Pledged Account Bank and Other Deposit AccountAccount without any additional formal actions or agreements). For the avoidance of doubt, the provisions of this Section 6(b) shall not apply to any deposit account that any Grantor manages or maintains on behalf of third parties, such as deposit accounts maintained or managed by any Grantor for a joint venture in which third parties participate.
(ec) To Subject in all respects to the extent provisions of Section 6(a5(g) above is applicablehereof, if during the continuation upon any termination by a Grantor of any Specified Default, a Grantor terminates any Other Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediatelypromptly (i) either (at such Grantor's election), if the Administrative Agent has required that the Grantors (A) comply with the provisions regarding the opening of Sections 6(anew deposit accounts as set forth in the first sentence of Section 6(b) and or (bB) subject to the restrictions set forth in Section 6(f), (i) transfer all funds and property held in such terminated Other Deposit Account to another Other Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account listed in Schedule IV and (ii) notify all Obligors that were making payments to such Other Deposit Account to make all future payments to another Other Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Accountlisted in Schedule IV hereto, in each case so that the Administrative Agent Collateral Trustee shall have a continuously perfected security interest in such Account CollateralDesignated Accounts. Subject in all respects to the provisions of Section 5(g) hereof, funds after the occurrence and property. Each during the continuance of an Event of Default following the First Priority Lien Satisfaction Date, each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative AgentCollateral Trustee.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Second Lien Shared Security Agreement (Dynegy Inc /Il/)
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect outstanding or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and Subject to Section 7.13(b) of the Administrative Agent shall have so requested, within forty-five (45) days after any such requestCredit Agreement, each Grantor shall (i) cause each bank will maintain deposit accounts only with whom the financial institution acting as Collateral Agent hereunder or with a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the a “Deposit Account Control Agreement”); provided, however, that this Section 5(a) shall not apply to Excluded Non-Pledged Accounts and no provision of this Agreement or (ii) instruct all account debtors the other Loan Documents shall apply to make all payments any Excluded Rangers Non- Pledged Accounts or Excluded Knicks Non-Pledged Accounts. The Collateral Agent agrees not to one or more other Pledged Account Banks by instructing that such payments be remitted issue any instructions to a post office box which shall be in the name and under the control of such any Pledged Account Bank under a lockbox agreement duly executed by except after the Grantor occurrence and such Pledged Account Bank, in form and substance satisfactory to during the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingcontinuance of an Event of Default.
(b) If a Specified Default shall have occurred After the occurrence and be continuing and during the Administrative Agent shall have so requestedcontinuance of an Event of Default, within ten (10 Business Days after any such requestupon the written request of the Collateral Agent, each Grantor will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Cash Collateral Account, except that such Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account or the Cash Collateral Account oras of the Closing Date, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit making payments to such Grantor of less than $1,000,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security interest of the Secured Parties in accordance with the Credit Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agentany.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon After the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition an Event of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Default under Section 6(a8.01(b) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative of the Credit Agreement, the Collateral Agent may, at any time and without notice to, or consent from, from the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Pledged Deposit Accounts or the Cash Collateral Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transferObligations. The Collateral Agent agrees to give notice to such Grantor of such transfer or direction; provided, or direct the transfer of, funds from the Deposit Accounts to however that any failure by the Collateral AccountAgent to give such notice shall not invalidate such transfer or direction.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan Loans or any other Obligation of any Loan Party under any Loan Document Secured Obligations shall remain unpaid, any Letter of Credit shall be outstanding, unpaid or any Secured Hedge Debt Agreement shall be in effect or any Lender Party shall have any Commitmenteffect:
(a) If Each Grantor will maintain deposit accounts only with the Collateral Agent or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall agreement to be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be 9 HN\1119607.7 in form and substance satisfactory to the Administrative Collateral Agent (the a “Deposit Account Control Agreement”); provided, however, this Section 5(a) shall not apply to (i) any deposit account with a principal balance that does not exceed, or has not exceeded within the past 12 months, $250,000 or (ii) instruct all that certain deposit account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be maintained with JPMorgan Chase Bank in Houston, Texas (reference Endeavour Operating CO 010 General – Enertia), unless and until the name and under the control principal balance of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.account on any day exceeds $250,000);
(bu) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately i)promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or Deposit Account, and (ii) if so requestedii)deposit in a Pledged Deposit Account, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes in excess of $250,000 in the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.aggregate;
(cv) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will shall not add close any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Deposit Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral AccountAgreement, in each case so that case, without the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each prior written consent of the Collateral Account, the L/C Collateral Account, Agent; and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(gw) The Administrative Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral Pledged Deposit Accounts to satisfy the Grantor’s obligations under the Loan Documents and (ii) transferCredit Documents, the Secured Hedging Agreements or direct the transfer ofLC Procurement Documents; provided, funds from the Deposit Accounts to that the Collateral AccountAgent may only exercise any such rights if an Event of Default shall have occurred and be continuing.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Lc Procurement Agreement (Endeavour International Corp)
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect outstanding or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred Subject to Sections 7.13(b) and be continuing and (c) of the Administrative Agent shall have so requested, within forty-five (45) days after any such requestCredit Agreement, each Grantor shall (i) cause each bank will maintain deposit accounts only with whom the financial institution acting as Collateral Agent hereunder or with a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has entered into an agreement with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the a “Deposit Account Control Agreement”); provided, however, that this Section 5(a) shall not apply to Excluded Non-Pledged Accounts and no provision of this Agreement or (iithe other Loan Documents shall apply to any Excluded Rangers Non-Pledged Accounts or, except to the extent specifically provided in Section 5(b)(i) instruct all account debtors below, Excluded Knicks Non-Pledged Accounts. The Collateral Agent agrees not to make all payments issue any instructions to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such any Pledged Account Bank under a lockbox agreement duly executed by except after the Grantor occurrence and such Pledged Account Bank, in form and substance satisfactory to during the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingcontinuance of an Event of Default.
(b) If Subject to Sections 7.13(b) and (c) of the Credit Agreement, each Grantor hereby agrees that:
(i) the Grantors shall at all times maintain (A) at least one deposit account which conforms to the definition of an “Excluded Non-Pledged Concentration Account”, as set forth in the Credit Agreement; and (B) at least one Pledged Deposit Account that serves as a Specified Default general pledged concentration account for the Grantors (each a “Pledged Concentration Account”), into which (x) all unapplied funds from each Excluded Non-Pledged Concentration Account (other than any Excluded Funds), (y) all unapplied funds from the Excluded Knicks Non-Pledged Accounts and (z) any other funds received by any Grantor and not otherwise deposited into an Excluded Non-Pledged Account or another Pledged Account, automatically flow, or are manually or automatically swept, in each case in accordance with the Grantors’ cash management procedures, and in any event no less frequently than once every 30 days; provided, that the Company shall have occurred and be continuing and provide the Administrative Collateral Agent shall have so requested, within ten (with detailed written notice at least 10 Business Days after prior to the re-designation of any Excluded Non-Pledged Concentration Account or any Pledged Concentration Account); provided, further that to the extent that any Grantor fails to deposit into a Pledged Concentration Account, pursuant to clause (z) above, any funds received by it which were not deposited into any other Pledged Account (pursuant to the terms of this Agreement and the Credit Agreement), or into an Excluded Non-Pledge Account (in accordance with the definition thereof), then such requestGrantor shall promptly, and in any event within five Business Days, following any senior financial officer of the Company receiving actual knowledge of such failure to deposit such funds (including by means of a written notice thereof from the Collateral Agent), deposit such funds into a Pledged Concentration Account; and
(ii) if the Total Secured Leverage Ratio (as set forth in the most recently delivered Compliance Certificate provided by the Company in accordance with Section 7.01(e) of the Credit Agreement), shall at any time be greater than 2.50:1.00, then all cash disbursements made from time to time by any Grantor shall, in each case, be made using immediately available funds drawn from the Excluded Non-Pledged Concentration Accounts of the Grantors and Excluded Non-Pledged Investment Accounts; provided, that, if on any day at least 90% of the aggregate amount of immediately available funds held in such accounts (determined as a percentage of the aggregate opening balances of immediately available funds held in all such Excluded Non-Pledged Concentration Accounts on such day) shall have already been disbursed by the Grantors, then the applicable Grantors may fund the balance of all remaining cash disbursement on such day using funds held in one or more of the Pledged Deposit Accounts; provided, further, that if any Grantor shall at any time disburse funds from a Pledged Deposit Account other than in accordance with the requirements of this Section 5(b)(ii), then such Grantor (or any other Grantor on its behalf) may cure such breach by depositing into each applicable Pledged Deposit Account the full amount of all funds improperly drawn from such Pledged Deposit Account, using exclusively funds drawn from one or more of the Excluded Non-Pledged Accounts (other than Excluded Funds) promptly, and in any event within five Business Days, following any senior financial officer of the Company receiving actual knowledge of such improper disbursement of funds (including by means of a written notice thereof from the Collateral Agent).
(c) After the occurrence and during the continuance of an Event of Default, upon the written request of the Collateral Agent, each Grantor will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Cash Collateral Account, except that such Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account or the Cash Collateral Account oras of the Closing Date, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit making payments to such Grantor of less than $5,000,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security interest of the Secured Parties in accordance with the Credit Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantorany.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon After the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition an Event of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Default under Section 6(a8.01(b) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative of the Credit Agreement, the Collateral Agent may, at any time and without notice to, or consent from, from the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Pledged Deposit Accounts or the Cash Collateral Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transferObligations. The Collateral Agent agrees to give notice to such Grantor of such transfer or direction; provided, or direct the transfer of, funds from the Deposit Accounts to however that any failure by the Collateral AccountAgent to give such notice shall not invalidate such transfer or direction.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default Except in the case of Account Collateral with Xxxxx Fargo Bank, N.A. and Pershing LLC, which shall be maintained in accordance with this paragraph from and after the date hereof, from and after the date which is 60 days after the date hereof (as such date may be extended on the terms permitted by the Credit Agreement and provided that if such Grantor has used commercially reasonable efforts to obtain the Account Control Agreement described below, such Grantor shall have occurred and be continuing and an additional 30 days to either (A) obtain such Account Control Agreement or (B) move the Administrative Agent shall have so requested, within forty-five (45) days after any such requestapplicable Account Collateral to a Pledge Account Bank that is party to an Account Control Agreement), each Grantor shall will maintain all Account Collateral only with the Collateral Agent or with banks (ithe "PLEDGED ACCOUNT BANKS") cause each bank with whom a Deposit Account is maintained to agree that have agreed, in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment, except for debits by the Pledged Account Banks for fees, charges or returned item amounts) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the “"ACCOUNT CONTROL AGREEMENT"); provided, however, this Section 5(a) shall not apply to Other Deposit Accounts listed in Schedule VIII hereto so long as the individual balance of any such Other Deposit Account does not exceed $100,000 and the aggregate of the balances in all such Other Deposit Accounts (together with any other deposit accounts of all Grantors not then subject to Account Control Agreement”Agreements) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bankdoes not exceed $500,000, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingcase at any time.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately instruct each Person (including any Governmental Party to deposit in an Other Deposit Account or the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment Collateral Account or pay to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, Agent for deposit in the Collateral Account orAccount, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If , other than (i) xxxxx cash that in the ordinary course of business is kept at such Grantor's offices and (ii) checks received at such Grantor's offices that in the ordinary course of business are not deposited into a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agentdeposit account on a daily basis but which are deposited at least once per week.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (except with respect to any new deposit account the individual balance of which does not exceed $100,000 and does not exceed when aggregated with all other Other Deposit Accounts not then subject to Account Control Agreements, including those referred to in the proviso to clause (a) above, $500,000)
(i) the Administrative Collateral Agent shall have received at least ten (10) days’ three Business Days' prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V VII hereto shall be automatically amended to include such Other Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a an Other Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Other Deposit Account, if it gives the Administrative Collateral Agent at least ten (10) days’ three Business Days' prior written notice of such termination (and, upon such termination, Schedule V VII hereto shall be automatically amended to delete such Pledged Account Bank and Other Deposit Account).
(ed) To the extent Section 6(a) above is applicable, if during the continuation Upon any termination by a Grantor of any Specified Default, a Grantor terminates any Other Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) immediately transfer all funds and property held in such terminated Other Deposit Account to another Other Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank listed in Schedule VII or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Collateral Agent.
(fe) Upon the occurrence and during the continuance of a Specified Default, the Administrative The Collateral Agent shall have sole right in accordance with the Credit Agreement to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, Account and, if Section 6(a) shall be applicableafter the occurrence and during the continuance of an Event of Default and the exercise by the Collateral Agent of its right to exclusive control over the Other Deposit Accounts, the Other Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, Account and the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, Account or the L/C Collateral Account or the Deposit AccountsAccount, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, Account or the L/C Collateral Account or Account; and it shall be a term and condition of the Other Deposit Accounts (only that after the exercise by the Collateral Agent of its right to exclusive control over the Other Deposit Accounts, notwithstanding any term or condition to the extent so directed)contrary in any other agreement relating to the Other Deposit Accounts, as no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the case may beaccount of, or withdrawn by or for the account of, the Borrower or any other Person from the Other Deposit Accounts.
(gf) The Administrative Collateral Agent may, at any time time, after the occurrence and during the continuance of an Event of Default, and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s 's obligations under the Loan Documents (to the extent such obligations are due and payable) if an Event of Default shall have occurred and be continuing and (ii) transfer, or direct the transfer of, funds from the Other Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or , in each case, as otherwise required in order to Cash Collateralize Letters of Credit pursuant to permitted under the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Security Agreement (Leap Wireless International Inc)
Maintaining the Account Collateral. So long as any Loan or any other Second Lien Obligation of any Loan Party under any Loan Document shall remain unpaidoutstanding (other than any indemnification obligations for which no claim or demand for payment, any Letter of Credit shall be outstandingwhether oral or written, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:has been made):
(a) If a Specified Default shall have occurred Subject to the terms of the Intercreditor Agreement, with respect to any Pledged Deposit Account, upon the request of the Collateral Agent made upon the occurrence and be continuing and during the Administrative Agent shall have so requested, within forty-five (45) days after any such requestcontinuance of an Event of Default, each Grantor shall (i) cause each bank will promptly enter into an agreement with whom a the financial institution holding the applicable Pledged Deposit Account is maintained pursuant to which such financial institution shall agree in a record authenticated by with such Grantor and the GrantorCollateral Agent to, upon notice from the Administrative Agent and such bank (a “Pledged Account Bank”)Collateral Agent, to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the a “Deposit Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name ), and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a any such Pledged Deposit Account maintained or the L/C Cash Deposit Account; provided, however, that notwithstanding the foregoing, the applicable Grantors shall use commercially reasonable efforts to obtain Deposit Account Control Agreements with a respect to the Pledged Account Bank and/or Deposit Accounts listed on Schedule XI hereto within sixty (ii60) if so requesteddays following the date hereof, deposit as such period may be extended in the Collateral Account or, if permitted by Agent’s reasonable discretion.
(b) Upon notice from the Administrative Agent, a Deposit Account at the end Collateral Agent that an Event of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have has occurred and be is continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Pledged Deposit Accounts, other than those Pledged Deposit Accounts (x) maintained with the First Lien Agent, or (y) subject to Deposit Account Control Agreements Agreements, upon request by the Administrative Collateral Agent, subject to the terms of the Intercreditor Agreement.
(fc) Upon Subject to the occurrence and during terms of the continuance of a Specified DefaultIntercreditor Agreement, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Pledged Deposit Accounts or the L/C Cash Deposit Account Collateral to satisfy the Grantor’s obligations under the Loan Second Lien Documents if an Event of Default shall have occurred and (ii) be continuing. As soon as reasonably practicable after any such transfer, or direct the transfer of, funds from the Deposit Accounts Collateral Agent agrees to give written notice thereof to the Collateral Accountapplicable Grantor.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So Subject to (i) the rights of the Collateral Monitoring Agent under the Revolving Credit Agreement, the Security Agreement (as defined in the Revolving Credit Agreement, the “Revolver Security Agreement”) and the Revolver Intercreditor Agreement (as hereinafter defined) and (ii) the rights of the Term Collateral Agent under the Term Security Agreement and the General Intercreditor Agreement (as hereinafter defined), so long as any Loan or any other Obligation (other than contingent obligations) of any Loan Party Grantor under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If Each Grantor will maintain deposit accounts only with the financial institution acting as Collateral Agent hereunder or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the a “Deposit Account Control Agreement”); provided, however, this Section 5(a) shall not apply to deposit accounts (i) in which all funds therein are swept on a daily basis and only to another deposit account over which there is in effect a Deposit Account Control Agreement or (ii) instruct all account debtors to make all payments to one operated solely as a payroll account, provided, that no funds or more other Pledged Account Banks by instructing that such payments investments in excess of $10,000,000 shall at any time be remitted to a post office box which shall be on deposit in the name and under payroll accounts in the control of such Pledged Account Bank under a lockbox agreement duly executed aggregate; provided, further, however, the Company shall have forty-five days (unless otherwise agreed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only ) from the Closing Date (as defined in the Existing Bridge Loan) to comply with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingthis requirements of this Section 5.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such requestSubject to Section 5(a), each Grantor will shall instruct all of its account debtors to remit all payments to (i) immediately instruct each Person (including any Governmental Party the applicable “P.O. Boxes” or “Lockbox Addresses” of the applicable Pledged Account Banks with respect to the extent that a Trigger Event has occurred) obligated at any time to make any payment to all accounts of such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account oraccount debtor, if permitted which remittances shall be collected by the Administrative Agent, applicable Pledged Account Banks and deposited into the applicable Pledged Deposit Account or (ii) any other deposit account in which all funds therein are swept on a daily basis and only to another deposit account over which there is in effect a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative AgentControl Agreement.
(c) If a Specified Default shall have occurred During the continuance of an Event of Default, upon notice from the Collateral Agent, upon the terms and be continuing, concurrently with or at any time after entering into an subject to the conditions set forth in the Deposit Account Control Agreement with any Agreement, all amounts held in all of the Pledged Account Bank, if requested Deposit Accounts by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to Grantors shall be wired by the Collateral Account, at the end close of business on each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, into an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Concentration Account”) with Bank of America, N.A. and all collected amounts held in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this AgreementConcentration Account shall be applied as provided in Section 19.
Appears in 1 contract
Samples: Security Agreement (Building Materials Manufacturing Corp)
Maintaining the Account Collateral. So long as any Loan Accommodation or any other Secured Obligation secured by the Pledge and Security Agreement (other than contingent indemnification claims as to which no valid demand has been made, “Unmatured Surviving Obligations”) of any Loan Party under any Loan Credit Document shall remain unpaid, any Letter of Credit unpaid or shall be outstanding, any Secured Hedge Eligible Cash Management Agreement or Eligible Hedging Agreement shall be in effect or any Lender Party shall have any Commitment:
(ai) If a Specified Default shall have occurred and be continuing and Commencing on the date that is 60 days following the Closing Date (or such later date as the Administrative Agent shall have so requested, within forty-five (45) days after any such requestmay reasonably agree), each U.S. Grantor shall (i) cause each bank will maintain deposit accounts only with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the financial institution acting as Administrative Agent and such or Collateral Agent hereunder or with a bank (a “Pledged Account Bank”)) that has agreed with such U.S. Grantor and the Administrative Agent or the Collateral Agent, as applicable, to comply with instructions originated by the Administrative Agent or the Collateral Agent, as applicable, directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such U.S. Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be agreement in form and substance reasonably satisfactory to the Administrative Agent and such U.S. Grantor (the a “Deposit Account Control Agreement”); provided, however, that this Section 6.01(15)(c) shall only apply to accounts maintained in the United States and shall not apply to deposit accounts (A) used solely as a tax or payroll account, escrow account, trust account, xxxxx cash account or flexible spending account, in each case maintained in the ordinary course of business or (B) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party deposit accounts to the extent that a Trigger the aggregate amount on deposit with all such other deposit accounts does not exceed U.S. $20,000,000, or such lower amount as may be required under the Revolving Credit Agreement at any time.
(ii) The Administrative Agent may (or may request that the Collateral Agent), at any time during the continuance of an Event has occurred) of Default, request that each U.S. Grantor instruct each Person obligated at any time to make any payment to such U.S. Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Collateral Account orAccount, if permitted by the Administrative Agent, except that such U.S. Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account maintained with a Pledged or Collateral Account Bank and/or as of the date hereof, (ii) if so requested, deposit making payments to such U.S. Grantor of less than $250,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security of the Guaranteed Parties in accordance with this Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the any.
(iii) The Administrative Agent to notify each Obligor may (or may request that such payments have been assigned to the Administrative Agent as collateral hereunder Collateral Agent), at any time during the continuance of an Event of Default and to instruct such Obligor to make all payments without notice to, or consent from, any U.S. Grantor, transfer, or direct the transfer of, funds from the Pledged Deposit Accounts to the Collateral Account or as otherwise directed by to satisfy the Administrative AgentSecured Obligations under the Security and Pledge Agreement and other Credit Documents.
(civ) If Upon any termination by a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with U.S. Grantor of any Pledged Account BankDeposit Account, if requested by the Administrative Agent, each such U.S. Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless promptly (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicabletransferred within the United States, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Pledged Deposit Account Account, to the extent future payments continue to be made within the United States, to make all future payments to another Pledged Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent or the Collateral Agent, as applicable, shall have a continuously perfected security interest in such Account CollateralCollateral Account, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Open Text Corp)
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall Secured Obligations remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall Each Grantor will maintain all Account Collateral only with the Collateral Agent or with banks (the "PLEDGED ACCOUNT BANKS") that have occurred and be continuing and the Administrative Agent shall have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit in an Account is maintained to agree in a record Control Agreement authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance satisfactory to the Administrative Agent (the “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Collateral Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(ec) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the The Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral AccountAccounts, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower any Grantor or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may beAccounts.
(gd) The Administrative Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s 's obligations under the Loan Note Documents if an Event of Default shall have occurred and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Accountbe continuing.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Security Agreement (Hollinger Inc)
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall the Second Priority Secured Obligations remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall The Borrower will maintain all Account Collateral only with the Second Priority Corporate Trustee or with banks (the “Pledged Account Banks”) that have occurred and be continuing and the Administrative Agent shall have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the GrantorBorrower, the Administrative Agent Second Priority Collateral Trustees and such bank (a “the Pledged Account Bank”)Banks, to, subject to the Second Priority Collateral Trust Agreement, (i) comply with instructions originated by the Administrative Agent Second Priority Collateral Trustees directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Borrower upon the receipt by the applicable Pledge Account Bank of a Notice of Exclusive Control”) shall be withdrawn Control (as defined in the event such Specified Default shall no longer be continuing applicable Account Control Agreement referred to below) and (ii) waive or subordinate in favor of the Administrative Agent Second Priority Collateral Trustees all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment but subject to such exceptions as may be agreed) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance satisfactory to the Administrative Agent Second Priority Collateral Trustees (the “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing).
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor The Borrower will (i) immediately instruct cause each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor the Borrower for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative AgentAccount.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor The Borrower agrees that it will not add any bank that maintains a deposit account for such Grantor the Borrower or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent Second Priority Collateral Trustees and the Required Second Priority Representatives shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent Second Priority Collateral Trustees shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative AgentSecond Priority Corporate Trustee, an Account Control Agreement authenticated by such new bank and such Grantorthe Borrower, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent Second Priority Collateral Trustees of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such new Deposit Account). During the continuation of any Specified Default, each Grantor The Borrower agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor Borrower may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such a Deposit Account, if it gives the Administrative Agent Second Priority Collateral Trustees and the Required Second Priority Representatives at least ten (10) 10 days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account). The Borrower will not change or add any bank that maintains any deposit account in which any of the Account Collateral is credited or carried, or change or add any such deposit account, in each case without first complying with the provisions of this Section 5 in order to continuously perfect the security interest granted hereunder in such Account Collateral.
(ed) To Upon any termination by the extent Section 6(a) above is applicable, if during the continuation Borrower of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement the Borrower, or any Pledged Account Bank with respect thereto, such Grantor the Borrower will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account listed in Schedule V hereto and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Accountlisted in Schedule V hereto, in each case so that the Administrative Agent Second Priority Collateral Trustees shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(fe) Upon Subject to the Second Priority Collateral Trust Agreement and upon the occurrence and during the continuance of a Specified Second Priority Collateral Trust Agreement Default, the Administrative Agent Second Priority Collateral Trustees shall have the right to originate a Notice of Exclusive Control (as such term is defined in the applicable Account Control Agreement) with respect to any Deposit Account and thereafter shall have the sole and exclusive right at such time to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the applicable Deposit Accounts; and it shall be a term and condition of each of the Collateral Accountprovided, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, however that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transferthe Pledged Account Bank shall have received, or direct prior to the transfer of, funds receipt of the Notice of Exclusive Control from the Second Priority Collateral Trustees, a notice from the First Priority Collateral Trustees that the First Priority Security Interest (as defined in the applicable Securities Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and Control Agreement) has been terminated or (ii) transfer, or direct the transfer of, funds from the Deposit Accounts First Priority Collateral Trustees shall have consented in writing to the Collateral Account.
(h) Upon origination of the request Notice of Exclusive Control by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Second Priority Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this AgreementTrustees.
Appears in 1 contract
Samples: Second Priority Security Agreement (Aes Corporation)
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall the Secured Obligations remain unpaidoutstanding, any Revolving Letter of Credit or the Drax Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Revolving Credit Loan Bank has a Revolving Credit Loan Commitment:
(a) If a Specified Default shall The Borrower will maintain all Account Collateral only with the Corporate Trustee or with banks (the "Pledged Account Banks") that have occurred and be continuing and the Administrative Agent shall have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the GrantorBorrower, the Administrative Agent Collateral Trustees and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Agent Collateral Trustees directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Borrower upon the receipt by the applicable Pledge Account Bank of a Notice of Exclusive Control”) shall be withdrawn Control (as defined in the event such Specified Default shall no longer be continuing applicable Account Control Agreement referred to below) and (ii) waive or subordinate in favor of the Administrative Agent Collateral Trustees all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment but subject to such exceptions as may be agreed) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance satisfactory to the Administrative Agent Collateral Trustees (the “"Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing").
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor The Borrower will (i) immediately instruct cause each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor the Borrower for any reason (an “"Obligor”") to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative AgentAccount.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor The Borrower agrees that it will not add any bank that maintains a deposit account for such Grantor the Borrower or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent Collateral Trustees and the Required Representatives shall have received at least ten (10) 10 days’ ' prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent Collateral Trustees shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative AgentCorporate Trustee, an Account Control Agreement authenticated by such new bank and such Grantorthe Borrower, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent Collateral Trustees of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such new Deposit Account). During the continuation of any Specified Default, each Grantor The Borrower agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor Borrower may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such a Deposit Account, if it gives the Administrative Agent Collateral Trustees and the Required Representatives at least ten (10) 10 days’ ' prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account). The Borrower will not change or add any bank that maintains any deposit account in which any of the Account Collateral is credited or carried, or change or add any such deposit account, in each case without first complying with the provisions of this Section 5 in order to continuously perfect the security interest granted hereunder in such Account Collateral.
(ed) To Upon any termination by the extent Section 6(a) above is applicable, if during the continuation Borrower of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement the Borrower, or any Pledged Account Bank with respect thereto, such Grantor the Borrower will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account listed in Schedule V and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Accountlisted in Schedule V hereto, in each case so that the Administrative Agent Collateral Trustees shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees .
(e) The Borrower shall, with respect to each Deposit Account set forth on Part A of Schedule VIII hereto (the "Other Deposit Accounts"), within 7 days of the date of this Agreement (x) terminate any such Other Deposit Account, at which time Schedule V and Part A of Schedule VIII hereto shall be automatically amended to delete such Deposit Account and Other Deposit Account, respectively or all Account Collateral and (y) enter into an Account Control Agreements upon request by the Administrative AgentAgreement with respect to such Other Deposit Account, at which time Part A of Schedule VIII shall be automatically amended to delete such Other Deposit Account.
(f) Upon the occurrence and during the continuance of a Specified Collateral Trust Agreement Default, the Administrative Agent Collateral Trustees shall have the right to originate a Notice of Exclusive Control (as such term is defined in the applicable Account Control Agreement) with respect to any Deposit Account and thereafter shall have the sole and exclusive right at such time to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, applicable the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Security Agreement (Aes Corporation)
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If Upon request of the Collateral Agent during the continuance of a Specified Default shall have occurred and be continuing and under Section 6.01(a) or (f) of the Administrative Agent shall have so requestedCredit Agreement or an Event of Default, within forty-five (45) days after any such request, each Grantor shall (i) cause the Borrower shall open the Cash Concentration Account (if not previously opened), (ii) the Grantors will provide a schedule (the “Account Collateral Schedule”) listing all the Other Deposits Accounts of the Grantors and (iii) each bank Grantor will maintain all Account Collateral only with whom a Deposit the Collateral Agent or with banks (the “Pledged Account is maintained to agree Banks”) that have agreed, in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to (A) comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (iiB) waive or subordinate in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing).
(b) If Upon request of the Collateral Agent during the continuance of a Specified Default shall have occurred and be continuing and under Section 6.01(a) or (f) of the Administrative Agent shall have so requested, within ten (10 Business Days after any such requestCredit Agreement or an Event of Default, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a an Other Deposit Account maintained with or a Pledged Cash Concentration Account Bank and/or and (ii) if so requested, deposit in an Other Deposit Account or the Cash Concentration Account or pay to the Collateral Agent for deposit in the Collateral Account orCash Concentration Account, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If Upon request of the Collateral Agent during the continuance of a Specified Default shall have occurred and be continuing, concurrently with under Section 6.01(a) or at any time after entering into (f) of the Credit Agreement or an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative AgentEvent of Default, each Grantor will instruct such each Pledged Account Bank to transfer to the Collateral Cash Concentration Account, at the end of each Business Day or such other frequency as the Administrative Agent may directDay, in same day funds, an amount equal to the credit balance of the each Other Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Collateral Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not not, during the continuance of a Default under Section 6.01(a) or (f) of the Credit Agreement or an Event of Default, add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Collateral Agent shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, the Account Collateral Schedule V hereto shall be automatically amended to include such Other Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not not, during the continuance of a Default under Section 6.01(a) or (f) of the Credit Agreement or an Event of Default, terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a an Other Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Other Deposit Account, if it gives the Administrative Collateral Agent at least ten (10) 10 days’ prior written notice of such termination (and, upon such termination, the Account Collateral Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Other Deposit Account).
(e) To If a Default under Section 6.01(a) or (f) of the extent Section 6(a) above Credit Agreement or an Event of Default has occurred and is applicablecontinuing, if during the continuation upon any termination by a Grantor of any Specified Default, a Grantor terminates any Other Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Other Deposit Account to another Other Deposit Account covered by an listed in the Account Control Agreement maintained with a Pledged Account Bank Collateral Schedule or to the Collateral Cash Concentration Account and (ii) notify all Obligors that were making payments to such Other Deposit Account to make all future payments to another Other Deposit Account maintained with a Pledged listed in the Account Bank covered by an Account Control Agreement Collateral Schedule or to the Collateral Cash Concentration Account, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Collateral Agent.
(f) Upon So long as no Default under Section 6.01(a) or (f) of the occurrence Credit Agreement or Event of Default exists, the Borrower may draw checks on, and during otherwise withdraw amounts from, the Cash Concentration Account and any of the Other Deposit Accounts.
(g) During the continuance of a Specified Default under Section 6.01(a) or (f) of the Credit Agreement or an Event of Default, the Administrative Collateral Agent shall have sole right to direct the disposition of funds with respect to each of the Cash Concentration Account, the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, Account and the Other Deposit Accounts; and it shall be a term and condition of each of the Cash Concentration Account, the Collateral Account, the L/C Collateral Account, Account and the Deposit Accounts (in the case of Other Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Cash Concentration Account, the Collateral Account, the L/C Collateral Account or the Other Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Cash Concentration Account, the Collateral Account, the L/C Collateral Account or the Other Deposit Accounts (only to the extent so directed)Accounts, as the case may be.
(gh) The Administrative If a Default under Section 6.01(a) or (f) of the Credit Agreement or an Event of Default has occurred and is continuing, the Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Other Deposit Accounts to the Cash Concentration Account or from the Other Deposit Accounts and the Cash Concentration Account to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), to comply with instructions originated by the Administrative Agent directing the disposition of funds in any Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Agent (the “Deposit Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 10) Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an a Deposit Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an a Deposit Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Deposit Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Deposit Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an a Deposit Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections Section 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an a Deposit Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an a Deposit Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Deposit Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan Loans or any other Secured Obligation secured by the Security and Pledge Agreement (other than contingent indemnification claims as to which no valid demand has been made, “Unmatured Surviving Obligations”) of any Loan Party under any Loan Credit Document shall remain unpaid, any Letter of Credit unpaid or shall be outstanding, any Secured Hedge Agreement shall be in effect outstanding or any Lender Party shall have any Commitment:
(ai) If a Specified Default shall have occurred and be continuing and Commencing on the date that is 60 days following the Effective Date (or such later date as the Administrative Agent shall have so requested, within forty-five (45) days after any such requestmay reasonably agree), each U.S. Grantor shall (i) cause each bank will maintain deposit accounts only with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the financial institution acting as Administrative Agent and such or Collateral Agent hereunder or with a bank (a “Pledged Account Bank”)) that has agreed with such U.S. Grantor and the Administrative Agent or the Collateral Agent, as applicable, to comply with instructions originated by the Administrative Agent or the Collateral Agent, as applicable, directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such U.S. Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be agreement in form and substance reasonably satisfactory to the Administrative Agent and such U.S. Grantor (the a “Deposit Account Control Agreement”); provided, however, that this Section 6.01(15)(c) shall only apply to accounts maintained in the United States and shall not apply to deposit accounts (A) used solely as a tax or payroll account, escrow account, trust account, xxxxx cash account or flexible spending account, in each case maintained in the ordinary course of business or (B) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party deposit accounts to the extent that a Trigger the aggregate amount on deposit with all such other deposit accounts does not exceed U.S. $20,000,000, or such lower amount as may be required under the Revolving Credit Agreement at any time.
(ii) The Administrative Agent may (or may request that the Collateral Agent), at any time during the continuance of an Event has occurred) of Default, request that each U.S. Grantor instruct each Person obligated at any time to make any payment to such U.S. Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Collateral Account orAccount, if permitted by the Administrative Agent, except that such U.S. Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account maintained with a Pledged or Collateral Account Bank and/or as of the date hereof, (ii) if so requested, deposit making payments to such U.S. Grantor of less than $250,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security of the Guaranteed Parties in accordance with this Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the any.
(iii) The Administrative Agent to notify each Obligor may (or may request that such payments have been assigned to the Administrative Agent as collateral hereunder Collateral Agent), at any time during the continuance of an Event of Default and to instruct such Obligor to make all payments without notice to, or consent from, any U.S. Grantor, transfer, or direct the transfer of, funds from the Pledged Deposit Accounts to the Collateral Account or as otherwise directed by to satisfy the Administrative AgentSecured Obligations under the Security and Pledge Agreement and other Credit Documents.
(civ) If Upon any termination by a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with U.S. Grantor of any Pledged Account BankDeposit Account, if requested by the Administrative Agent, each such U.S. Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless promptly (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicabletransferred within the United States, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Pledged Deposit Account Account, to the extent future payments continue to be made within the United States, to make all future payments to another Pledged Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent or the Collateral Agent, as applicable, shall have a continuously perfected security interest in such Account CollateralCollateral Account, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan Accommodation or any other Obligation obligation secured by the Pledge and Security Agreement (other than contingent indemnification claims as to which no demand has been made, “Unmatured Surviving Obligations”) of any Loan Party under any Loan Credit Document shall remain unpaid, any Letter of Credit unpaid or shall be outstanding, any Secured Hedge Eligible Hedging Agreement shall be in effect or any Lender Party shall have any Commitment:
(ai) If a Specified Default shall have occurred and be continuing and Commencing on the date that is 60 days following the Closing Date (or such later date as the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantormay reasonably agree), the U.S. Grantor will maintain deposit accounts only with the financial institution acting as Administrative Agent and such hereunder or with a bank (a “Pledged Account Bank”), ) that has agreed with the U.S. Grantor and the Administrative Agent to comply with instructions originated by the Administrative Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event U.S. Grantor , such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be agreement in form and substance reasonably satisfactory to the Administrative Agent and the U.S. Grantor (the a “Deposit Account Control Agreement”); provided, however, that this Section 8.01(18)(c) shall only apply to accounts maintained in the United States and shall not apply to deposit accounts (A) used solely as a tax or payroll account, escrow account, trust account, xxxxx cash account or flexible spending account, in each case maintained in the ordinary course of business or (B) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party deposit accounts to the extent that a Trigger Event has occurredthe aggregate amount on deposit with all such other deposit accounts does not exceed $2,500,000 at any time.
(ii) The U.S. Grantor will promptly, within 75 days following the Closing Date (or such later date as the Administrative Agent may reasonably agree), instruct each Person obligated at any time to make any payment to such U.S. Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Pledged Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at except that such U.S. Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account or Collateral Account as of the end date hereof, (ii) making payments to such U.S. Grantor of each Business Day less than $250,000 a year in the aggregate, or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal (iii) making payments to accounts not purported to be subject to the credit balance security of the Deposit Account Guaranteed Parties in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bankaccordance with this Agreement, the Administrative Agent may do so without further notice to any Grantorif any.
(diii) During The Administrative Agent may, at any time during the continuation continuance of an Event of Default and without notice to, or consent from, the U.S. Grantor, transfer, or direct the transfer of, funds from the Pledged Deposit Accounts, the Collateral Account to satisfy the guaranteed obligations under the Security and Pledge Agreement and other Credit Documents.
(iv) Upon any termination by a U.S. Grantor of any Specified DefaultPledged Deposit Account, each such U.S. Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless promptly (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicabletransferred within the United States, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Pledged Deposit Account Account, to the extent future payments continue to be made within the United States, to make all future payments to another Pledged Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Open Text Corp)
Maintaining the Account Collateral. So long as any Loan or any Shared Secured Obligations (other Obligation of any Loan Party under any Loan Document than indemnification obligations that are not yet due and payable) which are accrued and payable shall remain unpaidunpaid and unsatisfied, or any Letter of Credit (with respect to which any reimbursement obligation related thereto constitutes a Shared Secured Obligation) shall be remain outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall Each Grantor will maintain all Designated Accounts only with the Collateral Trustees or with banks (the "Pledged Account Banks") that have occurred and be continuing and the Administrative Agent shall have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent Collateral Trustees and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Agent Collateral Trustees (as set forth in the Account Control Agreement) directing the disposition of funds in any Account Collateral the Designated Accounts without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate (other than as agreed between any Pledged Account Bank and the Collateral Trustees) in favor of the Administrative Agent Collateral Trustees all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent Collateral Trustees (the “"Account Control Agreement”"); provided, however, this Section 6(a) or (ii) instruct all account debtors shall not apply to make all payments Other Deposit Accounts listed in Schedule V hereto, as such Schedule may be updated from time to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingtime.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party Subject in all respects to the extent that a Trigger Event has occurredprovisions of Section 5(h) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Defaulthereof, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent Collateral Trustees shall have received at least ten (10) 10 days’ ' prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent Collateral Trustees shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative AgentCollateral Trustees, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent Collateral Trustees of such Account Control Agreement or supplement, Schedule V IV hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.Other Deposit
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation (other than Unmatured Surviving Obligations) of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment, subject to the terms and provisions of the Intercreditor Agreement:
(a) If Each Grantor will maintain deposit accounts only with the financial institution acting as Collateral Agent hereunder or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Borrower and Collateral Agent (the each, a “Deposit Account Control Agreement”); provided, however, that this Section 5(a) or shall not apply to deposit accounts (iicollectively, “Excluded Deposit Accounts”) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person used solely as local store level accounts (including any Governmental Party to the extent that the aggregate amount on deposit with such local store level accounts does not exceed $5,000,000 (other than temporary increases due to high sales volume for any consecutive five (5) day period beginning on a Trigger Event has occurredFriday of any week and ending on the Tuesday of the following week), zero balance accounts, a tax or payroll account, disbursement account, escrow account, trust account, petty cash account (to the extent that the aggregate amount on deposit with such petty cash accounts does not exceed $100,000), pension, employee benefits or other trust purposes, flexible spending benefit account, or for the benefit of any other party other than any Grantor or Subsidiary, in each case maintained in the ordinary course of business, (ii) obligated other deposit accounts to the extent that the aggregate amount on deposit with each deposit account does not exceed $500,000 at any time to make any payment to such Grantor for any reason or (an “Obligor”iii) to make such payment to where the Collateral Account or, if permitted by Agent is the Administrative Agent, bank. Each Grantor agrees that at no time shall the aggregate amount on deposit in all deposit accounts referred to in the foregoing clause (ii) for which there is not in effect a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requestedControl Agreement exceed $1,500,000. So long as an Event of Default has not occurred and is continuing, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default Agent agrees that (i) it shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at not issue any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice Bank or withhold any withdrawal rights from such Grantor with respect to funds from time to time credited to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement upon cure (but not a partial cure) or waiver of Section 6(a)any previously continuing Event of Default, the Administrative Collateral Agent shall have receivedtake such action, in at the case expense of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto as shall be automatically amended reasonably necessary to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect reconvey to such Deposit Account, if it gives Grantor the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct give instructions directing the disposition of funds with respect credited to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only any such deposit account. Notwithstanding anything contained herein to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank)contrary, notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default each Grantor shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the its local store level accounts and credit card processors to a cash concentration account that shall be a Pledged Deposit Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and within three (ii3) transfer, or direct the transfer of, Business Days of such funds from the Deposit Accounts to the Collateral Accountbeing deposited.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement Lender Hedging Contract shall be in effect or any Lender Secured Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and Each Grantor will maintain all Account Collateral only with the Administrative Agent shall or with banks (the "PLEDGED ACCOUNT BANKS") that have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “the Pledged Account Bank”)Banks, to to:
(i) comply with instructions originated by the Administrative Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and Grantor and
(ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank Banks (including, without limitation, including claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D heretoC hereto (in the case of a combined Deposit Account and Securities Account) or of Exhibit B hereto (in any other case), or shall otherwise be in form and substance reasonably satisfactory to to, and as negotiated in good faith by, the Administrative Agent (such agreements together being the “"ACCOUNT CONTROL AGREEMENTS"), provided that each Grantor shall have up to 30 days following the date hereof to provide any such Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”"OBLIGOR") to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative AgentAccount.
(c) If a Specified Default shall have occurred and be continuingExcept for any deposit account holding LC Collateral, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each no Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless unless:
(i) the Administrative Agent shall have received at least ten (10) 10 days’ ' prior written notice of such additional bank or such new deposit account and account, and
(ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each No Grantor agrees that it will not shall terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the a Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, Account if it gives the Administrative Agent at least ten (10) 10 days’ ' prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(ed) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), :
(i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and Account, and
(ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(fe) Upon the occurrence So long as no Event of Default shall have occurred and during the continuance of a Specified Defaultbe continuing, the Administrative Agent each Grantor shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the its Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(gf) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) a Grantor transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s 's obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral AccountLender Hedging Contracts if an Event of Default shall have occurred and be continuing.
(hg) Upon the request by occurrence and during the continuance of any Event of Default, the Administrative Agent at any time or shall be authorized to send to each Pledged Account Bank a Notice of Exclusive Control as otherwise required defined in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this any Account Control Agreement.
Appears in 1 contract
Samples: Security Agreement (American Real Estate Partners L P)
Maintaining the Account Collateral. So long as any Loan Borrowing or any other Obligation of any Loan Party Obligor under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Rate Protection Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and Each Grantor will maintain all Account Collateral only with the Administrative Agent shall or with banks (the "Pledged Account Banks") that have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance satisfactory to the Administrative Agent (the “"Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing").
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “a "Payment Obligor”") to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Cash Reserve Accounts or an Other Deposit Account maintained with a Pledged Account Bank and/or and (ii) if so requested, deposit in the Collateral Account orCash Reserve Accounts, if permitted by or pay to the Administrative AgentAgent for deposit in the Cash Reserve Accounts, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and ; provided, however, that, notwithstanding clause (ii), total deposits in an amount up to $50,000 may be continuing, maintained in each Grantor hereby authorizes Other Deposit Account at the Administrative Agent to notify end of each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative AgentBusiness Day.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Each Grantor will immediately instruct such each Pledged Account Bank to transfer to the Collateral a Cash Reserve Account, at the end of each Business Day or such other frequency as the Administrative Agent may directDay, in same day funds, an amount equal to the credit balance of the Other Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) five days’ ' prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V VII hereto shall be automatically amended to include such Other Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the any Grantor may terminate a an Other Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Other Deposit Account, if it gives the Administrative Agent at least ten (10) five days’ ' prior written notice of such termination (and, upon such termination, Schedule V VII hereto shall be automatically amended to delete such Pledged Account Bank and Other Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation Upon any termination by a Grantor of any Specified Default, a Grantor terminates any Other Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Other Deposit Account to another Other Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank listed in Schedule VII or to the Collateral a Cash Reserve Account and (ii) notify all Payment Obligors that were making payments to such Other Deposit Account to make all future payments to another Other Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement listed in Schedule VII hereto or to the Collateral a Cash Reserve Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Upon the occurrence and during the continuation of an Event of Default or Default of the nature set forth in Section 8.1.1 or 8.1.9 of the Credit Agreement, each Grantor agrees to terminate any or all Account Collateral Other Deposit Accounts and Account Control Agreements upon request by the Administrative Agent.
(f) So long as no Event of Default or Default of the nature set forth in Section 8.1.1 or 8.1.9 of the Credit Agreement shall have occurred and be continuing, the Borrower may draw checks on, and otherwise withdraw amounts from, the Cash Reserve Accounts or Other Deposit Accounts (including, without limitation, to pay or prepay Obligations under the Loan Documents).
(g) Upon the occurrence and during the continuance continuation of an Event of Default or a Specified DefaultDefault of the nature set forth in Section 8.1.1 or 8.1.9 of the Credit Agreement, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, Cash Reserve Accounts and the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Other Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Other Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Other Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents Equivalent Investments credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Other Deposit Accounts (only to the extent so directed)Accounts, as the case may be, other than for payments to the Cash Reserve Accounts.
(gh) The Administrative Agent may, at any time upon the occurrence and during the continuation of an Event of Default or a Default of the nature set forth in Section 8.1.1 or 8.1.9 of the Credit Agreement and without notice to, or consent from, the any Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the any Grantor’s 's obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Other Deposit Accounts to the Collateral AccountCash Reserve Accounts.
(hi) Upon the request by It is understood and agreed that New York is the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters Agent's jurisdiction for purposes of Credit pursuant Section 9-304 of the UCC with respect to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this AgreementCash Reserve Accounts.
Appears in 1 contract
Samples: Pledge and Security Agreement (Marvel Enterprises Inc)
Maintaining the Account Collateral. So long as any Loan Accommodation or any other Obligation obligation secured by the Pledge and Security Agreement (other than contingent indemnification claims as to which no valid demand has been made, “Unmatured Surviving Obligations”) of any Loan Party under any Loan Credit Document shall remain unpaid, any Letter of Credit unpaid or shall be outstanding, any Secured Hedge Eligible Cash Management Agreement or Eligible Hedging Agreement shall be in effect or any Lender Party shall have any Commitment:
(ai) If a Specified Default shall have occurred and be continuing and Commencing on the date that is 60 days following the Closing Date (or such later date as the Administrative Agent shall have so requested, within forty-five (45) days after any such requestmay reasonably agree), each U.S. Grantor shall (i) cause each bank will maintain deposit accounts only with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the financial institution acting as Administrative Agent and such or Collateral Agent hereunder or with a bank (a “Pledged Account Bank”)) that has agreed with such U.S. Grantor and the Administrative Agent or the Collateral Agent, as applicable, to comply with instructions originated by the Administrative Agent or the Collateral Agent, as applicable, directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such U.S. Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be agreement in form and substance reasonably satisfactory to the Administrative Agent and such U.S. Grantor (the a “Deposit Account Control Agreement”); provided, however, that this Section 7.01(17)(c) shall only apply to accounts maintained in the United States and shall not apply to deposit accounts (A) used solely as a tax or payroll account, escrow account, trust account, xxxxx cash account or flexible spending account, in each case maintained in the ordinary course of business or (B) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party deposit accounts to the extent that a Trigger the aggregate amount on deposit with all such other deposit accounts does not exceed $5,000,000 at any time.
(ii) The Administrative Agent may (or may request that the Collateral Agent), at any time during the continuance of an Event has occurred) of Default, request that each U.S. Grantor instruct each Person obligated at any time to make any payment to such U.S. Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Collateral Account orAccount, if permitted by the Administrative Agent, except that such U.S. Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account maintained with a Pledged or Collateral Account Bank and/or as of the date hereof, (ii) if so requested, deposit making payments to such U.S. Grantor of less than $250,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security of the Guaranteed Parties in accordance with this Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the any.
(iii) The Administrative Agent to notify each Obligor may (or may request that such payments have been assigned to the Administrative Agent as collateral hereunder Collateral Agent), at any time during the continuance of an Event of Default and to instruct such Obligor to make all payments without notice to, or consent from, any U.S. Grantor, transfer, or direct the transfer of, funds from the Pledged Deposit Accounts to the Collateral Account or as otherwise directed by to satisfy the Administrative Agentguaranteed obligations under the Security and Pledge Agreement and other Credit Documents.
(civ) If Upon any termination by a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with U.S. Grantor of any Pledged Account BankDeposit Account, if requested by the Administrative Agent, each such U.S. Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless promptly (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicabletransferred within the United States, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Pledged Deposit Account Account, to the extent future payments continue to be made within the United States, to make all future payments to another Pledged Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent or the Collateral Agent, as applicable, shall have a continuously perfected security interest in such Account CollateralCollateral Account, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Open Text Corp)
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document Secured Obligations shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect outstanding or any Lender Party shall have any Commitment, subject to the terms and provisions of any Intercreditor Agreement:
(a) If Each Grantor will maintain Pledged Deposit Accounts only with the financial institution acting as Collateral Agent hereunder or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Borrower and Collateral Agent (the each, a “Deposit Account Control Agreement”); provided, however, that this Section 5(a) shall not apply to any Excluded Account or where the Collateral Agent is the bank. So long as a Cash Control Trigger Event has not occurred and is continuing, the Collateral Agent agrees that (i) it shall not issue any instructions to any Pledged Account Bank or withhold any withdrawal rights from such Grantor with respect to funds from time to time credited to any deposit account and (ii) instruct all account debtors to make all payments to one upon (x) cure (but not a partial cure) or more other Pledged Account Banks by instructing that waiver of any previously continuing Cash Control Trigger Event, the Collateral Agent shall thereafter take such payments be remitted to a post office box which action, at the expense of such Grantor, as shall be in reasonably necessary to reconvey to such Grantor the name and under right to give instructions directing the control disposition of funds credited to any such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingdeposit account.
(b) If After the occurrence and during the continuance of a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such requestCash Control Trigger Event, each Grantor will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurredan “Obligor”) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Collateral Account orAccount, if permitted by the Administrative Agent, except that such Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account maintained with a Pledged or Collateral Account Bank and/or as of the date hereof, (ii) if so requested, deposit making payments to such Grantor less than $1,000,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security interest of the Secured Parties in accordance with the Credit Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agentany.
(c) If Notwithstanding anything contained in this Agreement to the contrary, upon the occurrence and during the continuance of a Specified Default shall have occurred Cash Control Trigger Event and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by upon written notice thereof from Collateral Agent to the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer (the “Notice of Exclusive Control”), (i) all cash and Cash Equivalents in the Pledged Deposit Account shall be transferred to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, Account in same day funds, an amount equal to the credit balance accordance with Section 2.17 of the Deposit Credit Agreement and (ii) all cash and Cash Equivalents in the Collateral Account shall be applied in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, accordance with Section 2.17 of the Administrative Agent may do so without further notice to any GrantorCredit Agreement.
(d) During If, at any time after the continuation occurrence and during the continuance of a Cash Control Trigger Event, any Specified Defaultcash or Cash Equivalents owned by any Grantor (other than amounts on deposit in Excluded Accounts) with respect to Collateral are deposited to any account, each or held or invested in any manner, other than in a Pledged Deposit Account or the Collateral Account, the Collateral Agent may require the applicable Grantor agrees that it will not add any bank that maintains a deposit account for to close such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement all funds therein transferred to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as all future deposits made to a Pledged Account Bank Deposit Account. In addition to the foregoing, during the continuance of an Event of Default, upon the request of the Collateral Agent, each Grantor shall provide the Collateral Agent with respect to such an accounting of the contents in each Pledged Deposit Account, if it gives which shall identify, to the Administrative extent practical, the proceeds from the Non-ABL Collateral which were deposited in the Pledged Deposit Account and swept into the Collateral Account. Upon the receipt of the (y) contents of the Pledged Deposit Accounts, and (z) such accounting, the Collateral Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended agrees to delete such Pledged Account Bank and Deposit Account)remit to the collateral agent the proceeds from the Non-ABL Collateral received by the Collateral Agent.
(e) To In the extent Section 6(a) above is applicable, if during event that the continuation Collateral Agent shall have delivered a Notice of any Specified Default, Exclusive Control to a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect theretoat which a Pledged Deposit Account is held, and thereafter Availability exceeds $62,500,000 for twenty (20) consecutive days, the Collateral Agent, subject to no Event of Default existing at such time, shall deliver a written notice to such Pledged Account Bank rescinding the Notice of Exclusive Control previously delivered.
(f) Upon any termination by a Grantor of any Pledged Deposit Account, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an or other account if a Deposit Account Control Agreement maintained with a Pledged Account Bank is entered into in respect of such other account or to the Collateral Account and (ii) notify all Obligors that were making payments to such Pledged Deposit Account to make all future payments to another Pledged Deposit Account maintained with or other account if a Pledged Account Bank covered by an Deposit Account Control Agreement is entered into in respect of such other account or to the Collateral Account, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any CommitmentSO LONG AS ANY ADVANCE OR ANY OTHER OBLIGATION OF ANY SECURITY PARTY UNDER THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL REMAIN UNPAID OR ANY LENDER SHALL HAVE ANY COMMITMENT:
(a) If a Specified Default shall have occurred From and be continuing and after the date that is ten (10) Banking Days after the Closing Date (or such later date as the Administrative Agent shall have so requested, within forty-five (45) days after any such requestagree in its sole discretion), each Grantor shall (i) cause each bank will maintain deposit accounts only with whom the financial institution acting as Grantee hereunder or with a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Grantee to comply with instructions originated by the Administrative Agent Grantee directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Agent Grantee (the a “Deposit Account Control Agreement”). The Grantee agrees that (x) or it will deliver notices of exclusive control only upon the occurrence and during the continuance of an Event of Default and (iiy) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that if it has delivered any such payments be remitted to a post office box which notice of exclusive control and thereafter no Event of Default is continuing, the Grantee shall be in promptly withdraw the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingsame.
(b) If Upon any termination by a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors obligors that were making payments to such Pledged Deposit Account to make all future payments to another Pledged Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent Grantee shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(fc) Upon the occurrence and during the continuance of a Specified an Event of Default, the Administrative Agent Grantee shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Pledged Deposit Accounts; , and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Pledged Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Pledged Deposit Accounts, as that, following delivery by the case may beGrantee of a notice of exclusive control to a Pledged Account Bank, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower any Grantor or any other Person from the Collateral AccountPledged Deposit Accounts, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may beunless and until such notice of exclusive control is withdrawn.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Facility (Era Group Inc.)
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement or Secured Cash Management Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and Except with respect to accounts that are not Material Accounts and, for the Administrative Agent shall have so requestedavoidance of doubt, within forty-five (45) days after any such requestexcept with respect to accounts that are Excluded Accounts, each Grantor shall (i) cause will maintain each bank with whom a Deposit Account and Collateral Account (to the extent it is maintained to agree a deposit account) only with the financial institution acting as Collateral Agent hereunder or with a bank (each, a “Pledged Account Bank”) that has agreed, in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “Pledged Account Bank”), to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral each such deposit account without the further consent of such Grantor (which instructions shall only be given upon the Grantor; provided that such instructions (including any “Notice occurrence and during the continuance of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor an Event of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account CollateralDefault), which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the each, an “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing).
(b) If a Specified Default shall have occurred and be continuing and Except with respect to deposit accounts that are not Material Accounts and, for the Administrative Agent shall have so requestedavoidance of doubt, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party except with respect to the extent deposit accounts that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Defaultare Excluded Accounts, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in (A) if the case of bank maintaining any such deposit account is neither a bank or Pledged Account Bank that is not nor the Administrative Agentfinancial institution acting as Collateral Agent hereunder, an Account Control Agreement authenticated by such new bank and such Grantor, or (B) if any such deposit account is maintained at a Pledged Account Bank, a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V II hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each .
(c) Each Grantor agrees that it will shall not terminate any bank as a Pledged Account Bank or terminate any Deposit Account Collateralthat is a Material Account and, except that for the Grantor may terminate a Deposit avoidance of doubt, is not an Excluded Account, and terminate a bank as a Pledged Account Bank with respect unless such Grantor shall, prior to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account therein to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors obligors that were making payments to such Deposit Account thereto to make all future payments to to, or otherwise automatically transfer all funds to, another Deposit Account that is maintained in compliance with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case this Section 5 so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(fd) Upon the occurrence The Borrower may from time to time designate in writing any deposit account or securities account to be an “Excluded Account” hereunder (an “Excluded Account”). The Borrower covenants and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(aagrees that any Excluded Account (i) shall be applicable, the Deposit Accounts; will contain only cash or Liquid Assets and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited theretoii) will be paid or released to or used solely for the account of, purpose of collateralizing any obligations under any Material Contract or withdrawn by Indebtedness permitted under Section 6.03(s) of the Credit Agreement in respect of or for the account of, the Borrower relating to one or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may bemore Material Contracts.
(ge) The Administrative Collateral Agent may, if an Event of Default shall have occurred and be continuing, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral AccountDocuments.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Security Agreement (Neustar Inc)
Maintaining the Account Collateral. So long as any Loan or any Secured Obligations (other Obligation of any Loan Party under any Loan Document than indemnification obligations that are not yet due and payable) which are accrued and payable shall remain unpaidunpaid and unsatisfied, or any Letter of Credit (with respect to which any reimbursement obligation related thereto constitutes a Secured Obligation) shall be remain outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall Each Grantor will maintain all Designated Accounts only with the Collateral Trustees or with banks (the “Pledged Account Banks”) that have occurred and be continuing and the Administrative Agent shall have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the relevant Grantor, the Administrative Agent Collateral Trustees and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Agent Collateral Trustees (as set forth in the Account Control Agreement) directing the disposition of funds in any Account Collateral the Designated Accounts without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate (other than as agreed between any Pledged Account Bank and the Collateral Trustees) in favor of the Administrative Agent Collateral Trustees all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent Collateral Trustees (the “Account Control Agreement”); provided, however, that this Section 6(a) or (ii) instruct all account debtors shall not apply to make all payments Other Deposit Accounts listed in Schedule V hereto, as such Schedule may be updated from time to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingtime.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party Subject in all respects to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end provisions of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified DefaultSection 5(g), each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent Collateral Trustees shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent Collateral Trustees shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative AgentCollateral Trustees, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent Collateral Trustees of such Account Control Agreement or supplement, Schedule V IV hereto shall be automatically amended to include such Other Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not may terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Designated Account, if it gives the Administrative Agent Collateral Trustees at least ten (10) 10 days’ prior written notice of such termination (and, upon such termination, Schedule V IV hereto shall be automatically amended to delete such Pledged Account Bank and Other Deposit AccountAccount without any additional formal actions or agreements). For the avoidance of doubt, the provisions of this Section 6(b) shall not apply to any deposit account that any Grantor manages or maintains on behalf of third parties, such as deposit accounts maintained or managed by any Grantor for a joint venture in which third parties participate.
(ec) To Subject in all respects to the extent provisions of Section 6(a) above is applicable5(g), if during the continuation upon any termination by a Grantor of any Specified Default, a Grantor terminates any Other Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediatelypromptly (i) either (at such Grantor’s election), if the Administrative Agent has required that the Grantors (A) comply with the provisions regarding the opening of Sections 6(anew deposit accounts as set forth in the first sentence of Section 6(b) and or (bB) subject to the restrictions set forth in Section 6(f), (i) transfer all funds and property held in such terminated Other Deposit Account to another Other Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account listed in Schedule IV and (ii) notify all Obligors that were making payments to such Other Deposit Account to make all future payments to another Other Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Accountlisted in Schedule IV hereto, in each case so that the Administrative Agent Collateral Trustees shall have a continuously perfected security interest in such Account CollateralDesignated Accounts. Subject in all respects to the provisions of Section 5(g), funds after the occurrence and property. Each during the continuance of an Event of Default, each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative AgentCollateral Trustees.
(fd) Upon the occurrence and during the continuance of a Specified Collateral Trust Agreement Default, the Administrative Agent Collateral Trustees shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Designated Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(ge) The Administrative Agent Collateral Trustees may, at any time and after notice to the Borrower (provided, however, that the failure to give any such notice to the Borrower shall not affect the validity of any action taken by the Collateral Trustees pursuant to the provisions of this Section 6(e)), but without notice to, or consent from, from the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral Designated Accounts to satisfy the Grantor’s obligations under the Loan Documents Secured Agreements if (i) (A) a payment default in respect of principal under such Secured Agreements shall have occurred and be continuing for a period greater than or equal to three Business Days, or (B) a payment default in respect of any amount other than principle due under such Secured Agreement shall have occurred and be continuing for a period greater than or equal to five Business Days, or (ii) transfer, or direct an acceleration of the transfer of, funds from the Deposit Accounts to the Collateral AccountFacilities shall have occurred and be continuing.
(hf) Upon Each of the request by Grantors agrees that at no time shall the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit aggregate amount on deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and Other Deposit Accounts listed in Schedule V hereto (other than any Other Deposit Account that is subject to this Agreementa Permitted Lien) exceed $20,000,000.
Appears in 1 contract
Samples: Security Agreement (Dynegy Inc /Il/)
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party Grantor under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall Each Grantor will maintain all Account Collateral only with the Collateral Agent or with banks (the “Pledged Account Banks”) that have occurred and be continuing and the Administrative Agent shall have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Agent Collateral Agent, who shall act at the direction of the Majority Lenders, directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided Grantor (it being agreed that other than upon the occurrence and during the continuance of an Event of Default, neither the Collateral Agent nor the Lenders shall issue any such instructions and each hereby authorizes and consents to the giving of all instructions and taking of all other actions with respect to the Account Collateral by the Grantors until receipt of notice by the applicable Pledged Account Bank under the applicable Account Control Agreement (including any “Notice of Exclusive Control”as defined below) shall be withdrawn in accordance with the event such Specified Default shall no longer be continuing terms thereof) and (ii) waive or subordinate in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) Account Collateral (except for claims for its fees and charges relating to the applicable Deposit Account Collateralor for assets deposited into the applicable Deposit Account returned unpaid for Table of Contents any reason, and as otherwise agreed to by the Collateral Agent), which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the “Account Control Agreement”) or (ii) instruct all account debtors ); it being agreed that in connection with the Grantors’ entering into a Permitted Facility, the Collateral Agent shall subordinate its security interest to make all payments that of the lenders under such facility to one or more other Pledged the extent that the assets held in the applicable Deposit Account Banks by instructing that such payments be remitted constitute proceeds of the Receivables subject to a post office box which shall be first priority security interest in the name and under the control favor of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuinglenders.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requestedEach Grantor will, within ten (10 two Business Days after any such requestof receipt thereof, each Grantor will (i) immediately instruct remit all payments made to it by each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason on account of Receivables owing by such Person (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or and (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account Account, at the end of each Business Day, all other cash proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that available for deposit at such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agenttime in excess of $250,000.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Collateral Agent shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V VI hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Collateral Agent at least ten (10) 10 days’ prior written notice of such termination (and, upon such termination, Schedule V VI hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(ed) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account (other than an amount reasonably estimated to cover the balance of any outstanding checks, reserves for returned items and the reasonable fees of the applicable Pledged Account Bank) to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account listed in Schedule VI and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Accountlisted in Schedule VI hereto, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees property (other than such amount as is not required to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agentbe transferred referred to above).
(fe) Upon the occurrence and during the continuance of a Specified Default, the Administrative The Collateral Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each Table of Contents of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, Accounts that no amount (including, without limitation, interest on Cash Equivalents other assets credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Deposit Accounts other than with the consent of the Collateral AccountAgent; it being agreed that the Collateral Agent and each Lender hereby authorizes and consents to the giving of all instructions, the L/C Collateral Account or making of withdrawals and taking of all other actions with respect to the Deposit Accounts and the Account Collateral by the Grantors, and neither the Collateral Agent nor the Lenders shall take any such actions, until the occurrence and during the continuance of an Event of Default and receipt of notice by the applicable Pledged Account Bank from the Collateral Agent under the applicable Account Control Agreement (only to as defined below) in accordance with the extent so directed), as the case may beterms thereof.
(gf) The Administrative Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) Grantor transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents if an Event of Default shall have occurred and be continuing.
(g) Notwithstanding the foregoing provisions, no Account Control Agreement shall be required hereunder for any deposit account that is (i) a benefits funding account (and used solely for such purpose) or (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Accounta zero balance disbursement account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Guaranty and Security Agreement (Pac-West Telecomm Inc)
Maintaining the Account Collateral. So long as any Loan or any other Obligation Until Full Payment of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:the Obligations (the “Discharge”):
(a) If Each Grantor will maintain deposit accounts (other than an account exclusively used for payroll, payroll taxes, employee benefits or other similar fiduciary obligations, any trust account, any zero-balance disbursement account (i.e., any account used only for disbursement purposes in which a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account balance of zero is maintained by automatically transferring funds from another account in an amount only large enough to agree in a record authenticated by cover checks presented), any account used to settle foreign exchange trades, accounts having an aggregate balance of not more than $250,000 or the Grantoraccount number 8666823891 maintained with Bank of America, N.A. so long as the ending daily balance of such account does not exceed $500,000 (collectively, the Administrative Agent and such “Excluded Accounts”)) only with a bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Agent to comply with instructions originated by the Administrative Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent and each of the Collateral Agents (in the case of the Collateral Proceeds Account, with provisions instructing such bank that pursuant to the Intercreditor Agreement, instructions originated by the Noteholder Collateral Trustee controls) (a “Deposit Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing).
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to a Pledged Deposit Account or the Cash Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or and (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Pledged Deposit Account or the Cash Collateral Account, at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default ; provided that only proceeds of the Noteholder First Lien Collateral shall have occurred be deposited in the Collateral Proceeds Account and be continuing, each Grantor hereby authorizes the Administrative Agent shall so instruct each such Person, shall so deposit proceeds of any Collateral and other cash and shall take all other actions necessary to notify each Obligor that such payments have been assigned give effect to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agentintent of this proviso.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer Subject to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account BankIntercreditor Agreement, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Pledged Deposit Accounts or the Cash Collateral Account Collateral to satisfy the Grantor’s obligations under the Loan Documents Obligations if an Event of Default shall have occurred and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Accountbe continuing.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Security Agreement (Solo Cup CO)
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall Secured Obligations remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Each Grantor shall will maintain all Account Collateral only with (i) cause each bank prior to a Collateral Transfer, (A) the First Priority Notes Collateral Agent or (B) in accordance with whom the First Priority Notes Indenture or the First Priority Notes Security Agreement, or (ii) after a Deposit Collateral Transfer, (A) the Second Priority Notes Collateral Agent or (B) banks (the "PLEDGED ACCOUNT BANKS") that have agreed, in an Account is maintained to agree in a record Control Agreement authenticated by the Grantor, the Administrative Second Priority Notes Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to (x) comply with instructions originated by the Administrative Second Priority Notes Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (iiy) waive or subordinate in favor of the Administrative Second Priority Notes Collateral Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance satisfactory to the Administrative Agent (the “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Second Priority Notes Collateral Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank that, (i) at any time, has entered into an Account Control Agreement with the First Priority Notes Collateral Agent with respect to the Collateral or terminate any Account CollateralCollateral included in the Collateral or (ii) after a Collateral Transfer, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by has entered into an Account Control Agreement or any Pledged Account Bank with the Second Priority Notes Collateral Agent with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Transferred Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by included in the Administrative AgentTransferred Collateral.
(fc) Upon the occurrence and during the continuance of a Specified DefaultAfter any Collateral Transfer, the Administrative Second Priority Notes Collateral Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral AccountAccounts included in the Transferred Collateral, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (included in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank)Transferred Collateral, notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents (as defined in the First Priority Notes Security Agreement) credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower any Grantor or any other Person from the Collateral Account, Accounts included in the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may beTransferred Collateral.
(gd) The Administrative After any Collateral Transfer, the Second Priority Notes Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral included in the Transferred Collateral to satisfy the Grantor’s 's obligations under the Loan Second Priority Note Documents if an Event of Default shall have occurred and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Accountbe continuing.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Second Priority Notes Security Agreement (Hollinger Inc)
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement or Secured Cash Management Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, Each Grantor will maintain each Grantor shall (i) cause each bank with whom a Deposit Account and Collateral Account (to the extent it is maintained to agree a deposit account) only with the financial institution acting as Collateral Agent hereunder or with a bank (each, a “Pledged Account Bank”) that has agreed, in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “Pledged Account Bank”), to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral each such deposit account without the further consent of such Grantor (which instructions shall only be given upon the Grantor; provided that such instructions (including any “Notice occurrence and during the continuance of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor an Event of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment to the extent set forth in Exhibit D hereto) to Account CollateralDefault), which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the each, an “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing).
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party Except with respect to the extent deposit accounts that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Defaultare not Material Accounts, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in (A) if the case of bank maintaining any such deposit account is neither a bank or Pledged Account Bank that is not nor the Administrative Agentfinancial institution acting as Collateral Agent hereunder, an Account Control Agreement authenticated by such new bank and such Grantor, or (B) if any such deposit account is maintained at a Pledged Account Bank, a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V II hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each .
(c) Each Grantor agrees that it will shall not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate unless such Grantor shall give the Collateral Agent a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, and upon such termination, Schedule V II hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect theretoand prior to such termination, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), shall (i) transfer all funds and property held in such terminated Deposit Account therein to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account thereto to make all future payments to another Deposit Account that is maintained in compliance with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case this Section 5 so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(fd) Upon the occurrence and during the continuance The Collateral Agent may, if an Event of a Specified Default, the Administrative Agent Default shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall occurred and be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent maycontinuing, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral AccountDocuments.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Security Agreement (Neustar Inc)
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation of any Loan Party under any Loan Document shall remain unpaidunpaid (other than contingent Obligations in respect of indemnities for which a claim has not been made), any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall Each Grantor will maintain all Account Collateral only with the Collateral Agent or with banks (the “Pledged Account Banks”) that have occurred and be continuing and the Administrative Agent shall have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment Grantor to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the “Account Control Agreement”); provided, however, this Section 5(a) shall not apply to any (i) payroll, tax escrow, fiduciary or trust (where held for the benefit of Persons that are not Grantors or Affiliates of Grantors), zero balance, pensions and 401(k) accounts listed in Schedule VII hereto or notified in writing to the Collateral Agent after the date hereof, (ii) instruct all account debtors deposit accounts listed in Schedule VII hereto or notified in writing to make all payments to one or the Collateral Agent after the date hereof, provided that the Grantors will not at any time maintain more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be than $50 million in the name aggregate in such deposit accounts for a period exceeding five consecutive Business Days (all accounts described in the preceding clauses (i) and under (ii) being the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing“Excluded Accounts”).
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party Except with respect to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified DefaultExcluded Accounts, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Collateral Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V VI hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account CollateralCollateral (other than an Excluded Account), except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Collateral Agent at least ten (10) 10 days’ prior written notice of such termination (and, upon such termination, Schedule V VI hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(ec) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered (other than an Excluded Account) by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank listed (or deemed to the Collateral Account be listed pursuant to Section 5(b)) in Schedule VI and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement listed (or deemed to the Collateral Account, be listed pursuant to Section 5(b)) in each case Schedule VI hereto so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(fd) Upon The Collateral Agent shall have sole right, upon the occurrence and during the continuance of a Specified Defaultan Event of Default under Sections 6.01(a) or 6.01(f) of the Credit Agreement, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, Account and the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, Account and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that that, upon the occurrence and during the continuance on an Event of Default under Sections 6.01(a) or 6.01(f), no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed)Accounts, as the case may be.
(ge) The Administrative Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s payment obligations under the Loan Documents if an Event of Default under Sections 6.01(a) or 6.01(f) shall have occurred and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Accountbe continuing.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and Each Grantor will maintain all Account Collateral only with the Administrative Agent shall or with banks (the "PLEDGED ACCOUNT BANKS") that have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance satisfactory to the Administrative Agent (the “Account Control Agreement”"ACCOUNT CONTROL AGREEMENT"); provided, however, this Section 5(a) or (ii) instruct all account debtors shall not apply to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be Other Deposit Accounts listed in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingSchedule VIII hereto.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”"OBLIGOR") to make such payment to the Collateral an Other Deposit Account or, if permitted by the Administrative Agent, to or a Deposit Account maintained with a Pledged Account Bank and/or and (ii) if so requested, deposit in the Collateral an Other Deposit Account or, if permitted by the Administrative Agent, or a Deposit Account or pay to the Administrative Agent for deposit in a Deposit Account, at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) 10 days’ ' prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V VII hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a an Other Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) 10 days’ ' prior written notice of such termination (and, upon such termination, Schedule V VIII hereto shall be automatically amended to delete such Pledged Account Bank and Other Deposit Account).
(ed) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account listed in Part II of Schedule VII and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, listed in each case Part II of Schedule VII hereto so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(e) The Borrower may draw checks on, and otherwise withdraw amounts only from, the Deposit Accounts and in such amounts as may be required in the ordinary course of business (including, without limitation, to pay or prepay Debt outstanding under the Loan Documents).
(f) Upon the occurrence and during the continuance of a Specified Default, the The Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, Account and the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, Account and the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, Account and the L/C Collateral Account or the Deposit AccountsAccount, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, Account and the L/C Collateral Account or the Deposit Accounts (only to the extent so directed)Account, as the case may be.
(g) The Administrative Agent may, (i) at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s 's obligations under the Loan Documents if an Event of Default shall have occurred and be continuing and (ii) at any time after the Collateral Account has been opened and without notice to, or consent from, the Grantor, transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation obligation of any Loan Security Party under the Credit Agreements, Notes or any Loan Security Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect unpaid or any Lender Party shall have any Commitment:
(a) If Each Grantor will maintain deposit accounts only with the financial institution acting as Grantee hereunder or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Grantee to comply with instructions originated by the Administrative Agent Grantee directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, B hereto or shall otherwise be in form and substance satisfactory to the Administrative Agent Grantee (the a “Deposit Account Control Agreement”). The Grantee agrees that (x) or it will deliver Notices of Exclusive Control (iias defined in each Deposit Account Control Agreement) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that only upon the occurrence and during the continuance of an Event of Default and (y) if it has delivered any such payments be remitted to a post office box which Notice of Exclusive Control and thereafter no Event of Default is continuing, the Grantee shall be in promptly withdraw the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingsame.
(b) If Upon any termination by a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors obligors that were making payments to such Pledged Deposit Account to make all future payments to another Pledged Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent Grantee shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(fc) Upon the occurrence and during the continuance of a Specified an Event of Default, the Administrative Agent Grantee shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Pledged Deposit Accounts; , and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Pledged Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Pledged Deposit Accounts, that, following delivery by the Grantee of a Notice of Exclusive Control (as defined in the case may beapplicable Deposit Account Control Agreement) to a Pledged Account Bank, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower any Grantor or any other Person from the Collateral AccountPledged Deposit Accounts, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may beunless and until such Notice of Exclusive Control is withdrawn.
(gd) The Administrative Agent Upon the occurrence and during the continuance of an Event of Default, the Grantee may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral Pledged Deposit Accounts to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, Notes or Security Documents. The Grantee agrees to notify the Borrower shall immediately open a letter of credit deposit account (Grantor promptly after any such transfer indicating the “L/C Collateral Account”) with Bank of America, N.A. in amount so transferred and the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this AgreementGrantor’s obligations so satisfied.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Facility (Seacor Holdings Inc /New/)
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document Secured Obligations shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect outstanding or any Lender Party shall have any Commitment, subject to the terms and provisions of the Intercreditor Agreement:
(a) If Each Grantor will maintain Pledge Deposit Accounts only with the financial institution acting as Collateral Agent hereunder or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Borrower and Collateral Agent (the each, a “Deposit Account Control Agreement”); provided, however, that this Section 5(a) shall not apply to an Excluded Account or where the Collateral Agent is the bank. So long as a Cash Control Trigger Event has not occurred and is continuing, the Collateral Agent agrees that (i) it shall not issue any instructions to any Pledged Account Bank or withhold any withdrawal rights from such Grantor with respect to funds from time to time credited to any deposit account and (ii) instruct all account debtors to make all payments to one upon (x) cure (but not a partial cure) or more other Pledged Account Banks by instructing that waiver of any previously continuing Cash Control Trigger Event, the Collateral Agent shall thereafter take such payments be remitted to a post office box which action, at the expense of such Grantor, as shall be in reasonably necessary to reconvey to such Grantor the name and under right to give instructions directing the control disposition of funds credited to any such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingdeposit account.
(b) If After the occurrence and during the continuance of a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such requestCash Control Trigger Event, each Grantor will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurredan “Obligor”) obligated at any time to make any payment to such Grantor for any reason with respect to the Revolving Facility First Lien Collateral (an “Obligor”as defined in the Intercreditor Agreement) to make such payment to a Pledged Deposit Account or the Collateral Account orAccount, if permitted by the Administrative Agent, except that such Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account maintained with a Pledged or Collateral Account Bank and/or as of the date hereof, (ii) if so requested, deposit making payments to such Grantor less than $1,000,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security interest of the Secured Parties in accordance with the Credit Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agentany.
(c) If Notwithstanding anything contained in this Agreement to the contrary, upon the occurrence and during the continuance of a Specified Default shall have occurred Cash Control Trigger Event and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by upon written notice thereof from Collateral Agent to the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer (the “Notice of Exclusive Control”), (i) all cash and Cash Equivalents in the Pledged Deposit Account shall be transferred to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, Account in same day funds, an amount equal to the credit balance accordance with Section 2.17 of the Deposit Credit Agreement and (ii) all cash and Cash Equivalents in the Collateral Account shall be applied in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, accordance with Section 2.17 of the Administrative Agent may do so without further notice to any GrantorCredit Agreement.
(d) During If, at any time after the continuation occurrence and during the continuance of a Cash Control Trigger Event, any Specified Defaultcash or Cash Equivalents owned by any Grantor (other than amounts on deposit in Excluded Accounts) with respect to Revolving First Lien Collateral are deposited to any account, each or held or invested in any manner, other than in a Pledged Deposit Account or the Collateral Account, the Collateral Agent may require the applicable Grantor agrees that it will not add any bank that maintains a deposit account for to close such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement all funds therein transferred to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as all future deposits made to a Pledged Account Bank Deposit Account. In addition to the foregoing, during the continuance of an Event of Default, upon the request of the Collateral Agent, each Grantor shall provide the Collateral Agent with respect to such an accounting of the contents in each Pledged Deposit Account, if it gives which shall identify, to the Administrative extent practical, the proceeds from the Term Facility First Lien Collateral (as defined in the Intercreditor Agreement) which were deposited in the Pledged Deposit Account and swept into the Collateral Account. Upon the receipt of the (y) contents of the Pledged Deposit Accounts, and (z) such accounting, the Collateral Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended agrees to delete such Pledged Account Bank and Deposit Account)remit to the collateral agent under the Term Facility the proceeds from the Term Facility First Lien Collateral received by the Collateral Agent.
(e) To In the extent Section 6(a) above is applicable, if during event that the continuation Collateral Agent shall have delivered a Notice of any Specified Default, Exclusive Control to a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect theretoat which a Pledged Deposit Account is held, and thereafter Availability exceeds $75,000,000 for thirty (30) consecutive days, the Collateral Agent, subject to no Event of Default existing at such time, shall deliver a written notice to such Pledged Account Bank rescinding the Notice of Exclusive Control previously delivered.
(f) Upon any termination by a Grantor of any Pledged Deposit Account, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account covered by an or other account if a Deposit Account Control Agreement maintained with a Pledged Account Bank is entered into in respect of such other account or to the Collateral Account and (ii) notify all Obligors that were making payments to such Pledged Deposit Account to make all future payments to another Pledged Deposit Account maintained with or other account if a Pledged Account Bank covered by an Deposit Account Control Agreement is entered into in respect of such other account or to the Collateral Account, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Revolving Facility Security Agreement (Dana Holding Corp)
Maintaining the Account Collateral. So long as any Loan or any other Second Lien Obligation of any Loan Party under any Loan Document shall remain unpaidoutstanding (other than any indemnification obligations for which no claim or demand for payment, any Letter of Credit shall be outstandingwhether oral or written, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:has been made):
(a) If a Specified Default shall have occurred Subject to the terms of the Intercreditor Agreement, with respect to any Pledged Deposit Account, upon the request of the Collateral Agent made upon the occurrence and be continuing and during the Administrative Agent shall have so requested, within forty-five (45) days after any such requestcontinuance of an Actionable Default, each Grantor shall (i) cause each bank will promptly enter into an agreement with whom a the financial institution holding the applicable Pledged Deposit Account is maintained pursuant to which such financial institution shall agree in a record authenticated by with such Grantor and the GrantorCollateral Agent to, upon notice from the Administrative Agent and such bank (a “Pledged Account Bank”)Collateral Agent, to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the a “Deposit Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name ), and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to any such Pledged Deposit Account or the L/C Cash Deposit Account; provided, however, that notwithstanding the foregoing, the applicable Grantors shall use commercially reasonable efforts to obtain Deposit Account Control Agreements with respect to the Pledged Deposit Accounts listed on Schedule X hereto within 90 days following the date hereof.
(b) Upon notice from the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Agent that an Actionable Default shall have has occurred and be is continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Pledged Deposit Accounts, other than those Pledged Deposit Accounts (x) maintained with the First Lien Agent, or (y) subject to Deposit Account Control Agreements Agreements, upon request by the Administrative Collateral Agent, subject to the terms of the Intercreditor Agreement.
(fc) Upon Subject to the occurrence and during terms of the continuance of a Specified DefaultIntercreditor Agreement, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Pledged Deposit Accounts or the L/C Cash Deposit Account Collateral to satisfy the Grantor’s obligations under the Loan Second Lien Documents if an Actionable Default shall have occurred and (ii) be continuing. As soon as reasonably practicable after any such transfer, or direct the transfer of, funds from the Deposit Accounts Collateral Agent agrees to give written notice thereof to the Collateral Accountapplicable Grantor.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any other Obligation Until the termination of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitmentthe security interest granted hereunder:
(a) If a Specified Default shall have occurred and be continuing and On the Administrative Agent shall have so requested, within forty-five (45) days after any such requestEffective Date, each Grantor shall will maintain all Account Collateral only with the Collateral Agent or with banks (ithe "Pledged Account Banks") cause each bank with whom a Deposit Account is maintained to agree that have agreed, in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment but not including claims for fees or returned items) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the “"Account Control Agreement”"); provided, however, this Section 5(a) shall not apply to Other Deposit Accounts listed in Schedule VII hereto so long as the amounts on deposit in such Other Deposit Accounts shall not, either individually or in the aggregate exceed the sum of (i) the amount necessary to cash collateralize Debt described in Section 5.02(b)(iii)(H) of the Credit Agreement, (ii) instruct all the amount necessary to cash collateralize Debt securing Liens of the type described in clause (iv) of the definition of "Permitted Liens" and (iii) $8,500,000 for any payroll account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in retail account.
(i) After the name occurrence and under during the control continuance of such Pledged Account Bank under a lockbox agreement duly executed by any Event of Default and at the Grantor and such Pledged Account Bank, in form and substance satisfactory to written direction of the Administrative Collateral Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) Affiliate of such Grantor obligated at any time to make any payment to such Grantor for any reason (an “"Obligor”") to make such payment to an Other Deposit Account or to the Collateral Account or, if permitted by and shall pay to the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, Collateral Agent for deposit in the Collateral Account orAccount, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral.
(ii) After the occurrence and during the continuance of any Event of Default and at the written direction of the Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuingAgent, each Grantor hereby authorizes the Administrative Agent to notify shall promptly instruct each Obligor that Person who is not an Affiliate of such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor Grantor obligated at any time to make all payments any payment to such Grantor for any reason to make such payment to an Other Deposit Account or to the Collateral Account or as otherwise directed by and shall pay to the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to Collateral Agent for deposit in the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may directDay, in same day funds, an amount equal to the credit balance all proceeds of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any GrantorCollateral.
(dc) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Collateral Agent shall have received at least ten (10) 10 days’ ' prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V VI hereto shall be automatically amended to include such Other Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a an Other Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Other Deposit Account, if it gives the Administrative Collateral Agent at least ten (10) 10 days’ ' prior written notice of such termination (and, upon such termination, Schedule V VI hereto shall be automatically amended to delete such Pledged Account Bank and Other Deposit Account).
(ed) To the extent Section 6(a) above is applicable, if during the continuation Upon any termination of any Specified Default, a Grantor terminates any Other Deposit Account covered by an Account Control Agreement any Grantor, or by any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Other Deposit Account to another Other Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank listed in Schedule VI or to the Collateral Account and (ii) notify all Obligors that were making payments to such Other Deposit Account to make all future payments to another Other Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement listed in Schedule VI hereto or to the Collateral Account, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Collateral Agent.
(fe) Upon the occurrence and during the continuance of a Specified Default, the Administrative The Collateral Agent shall have the sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(gf) The Administrative If an Event of Default shall have occurred and be continuing, the Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s 's obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Other Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any other Secured Obligation of any Loan Party under any Loan Document shall remain unpaid, if applicable, any Letter of Credit shall be outstanding, Hedging Obligation (as defined in any Parity Lien Document) secured by the Collateral or commitment to advance funds to a Grantor which if advanced would constitute Secured Hedge Agreement Obligations shall be in effect or any Lender Party shall have any Commitmenteffect:
(a) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five No later than sixty (4560) days after any the date hereof, as such requestdate may be extended on the terms permitted by the Indenture or Collateral Trust Agreement, at all times thereafter, each Grantor shall will maintain all Account Collateral only with the Collateral Trustee or with a bank (ithe “Pledged Account Bank”) cause each bank with whom a Deposit Account is maintained to agree that has agreed, in a record authenticated by the Grantor, the Administrative Agent Collateral Trustee and such bank (a “the Pledged Account Bank”), to (A) comply with instructions originated by the Administrative Agent Collateral Trustee directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice Grantor following the occurrence of Exclusive Control”) shall be withdrawn in the event such Specified a Parity Lien Event of Default shall no longer be continuing and (iiB) waive or subordinate in favor of the Administrative Agent Collateral Trustee all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent Collateral Trustee (the an “Account Control Agreement”) or (ii) instruct all account debtors ); provided that, with respect to make all payments to one or more other Pledged any newly created Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. ThereafterCollateral, each Grantor will maintain all be required to comply with the foregoing requirements with respect to such newly created Account Collateral only no later than sixty (60) days after the creation of such Account Collateral; provided further, that no Account Control Agreement shall be required in respect of deposit, checking or securities accounts the individual balance of which does not exceed $2,500,000 and does not exceed, when aggregated with the Administrative Agent or Pledged balance of all other such deposit, checking and securities accounts for which no corresponding Account Banks unless such Specified Default shall no longer be continuingControl Agreement is in effect, $10,000,000.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless unless, (iA) the Administrative Agent Collateral Trustee shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and (iiB) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent Collateral Trustee shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative AgentCollateral Trustee, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent Collateral Trustee of such Account Control Agreement or supplement, Schedule V VII hereto shall be automatically amended to include such Deposit Account). During the continuation Upon a Grantor’s termination of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate termination of any Account Collateral, except that the such Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written shall promptly give notice of such termination to the Collateral Trustee and deliver to the Collateral Trustee and the Trustee a certificate of an acceptable officer of such Grantor detailing the Account Collateral to be terminated and certifying that such termination is permitted under the Secured Debt Documents (and, upon such termination, Schedule V VII hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account); provided, however, that, unless the Collateral Trustee has given its express consent, no Grantor may (1) terminate any bank as a Pledged Account Bank with respect to any Cash Collateral Account, (2) terminate any Cash Collateral Account, or (3) terminate any bank as a Pledged Account Bank if a Parity Lien Event of Default has occurred and is continuing.
(ec) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank listed in Schedule VII or to the a Cash Collateral Account and (ii) notify all Obligors Persons obligated at any time to make any payment to such Grantor for any reason that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement listed in Schedule VII hereto or to the a Cash Collateral Account, in each case so that the Administrative Agent Collateral Trustee shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative AgentCollateral Trustee.
(fd) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent The Collateral Trustee shall have sole right to direct the disposition of funds with respect to each of the any Cash Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the any Cash Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the any Cash Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will will, except on the Collateral Trustee’s instructions, be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower Company or any other Person from the any Cash Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(ge) The Administrative Agent If a Parity Lien Event of Default shall have occurred and be continuing, the Collateral Trustee may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Parity Lien Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the a Cash Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party Grantor under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall Each Grantor will maintain all Account Collateral only with the Collateral Agent or with banks (the "PLEDGED ACCOUNT BANKS") that have occurred and be continuing and the Administrative Agent shall have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Agent Collateral Agent, who shall act at the direction of the Majority Lenders, directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided Grantor (it being agreed that other than upon the occurrence and during the continuance of an Event of Default, the Collateral Agent shall not issue any such instructions and hereby authorizes and consents to the giving of all instructions and taking of all other actions with respect to the Account Collateral by the Grantors until receipt of notice by the applicable Pledged Account Bank under the applicable Account Control Agreement (including any “Notice of Exclusive Control”as defined below) shall be withdrawn in accordance with the event such Specified Default shall no longer be continuing terms thereof) and (ii) waive or subordinate in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) Account Collateral (except for claims for its fees and charges relating to the applicable Deposit Account Collateralor for assets deposited into the applicable Deposit Account returned unpaid for any reason, and as otherwise agreed to by the Collateral Agent), which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the “"ACCOUNT CONTROL AGREEMENT"); it being agreed that in connection with the Grantors' entering into a Permitted Facility, the Collateral Agent shall subordinate its security interest to that of the lenders under such facility to the extent that the assets held in the applicable Deposit Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted constitute proceeds of the Receivables subject to a post office box which shall be first priority security interest in the name and under the control favor of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuinglenders.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requestedEach Grantor will, within ten (10 two Business Days after any such requestof receipt thereof, each Grantor will (i) immediately instruct remit all payments made to it by each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason on account of Receivables owing by such Person (an “Obligor”"OBLIGOR") to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or and (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account Account, at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that available for deposit at such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agenttime.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Collateral Agent shall have received at least ten (10) 10 days’ ' prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V VI hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Collateral Agent at least ten (10) 10 days’ ' prior written notice of such termination (and, upon such termination, Schedule V VI hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(ed) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account (other than an amount reasonably estimated to cover the balance of any outstanding checks, reserves for returned items and the reasonable fees of the applicable Pledged Account Bank) to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account listed in Schedule VI and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Accountlisted in Schedule VI hereto, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees property (other than such amount as is not required to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agentbe transferred referred to above).
(fe) Upon the occurrence and during the continuance of a Specified Default, the Administrative The Collateral Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, Accounts that no amount (including, without limitation, interest on Cash Equivalents other assets credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Deposit Accounts other than with the consent of the Collateral AccountAgent; it being agreed that the Collateral Agent hereby authorizes and consents to the giving of all instructions, the L/C Collateral Account or making of withdrawals and taking of all other actions with respect to the Deposit Accounts and the Account Collateral by the Grantors, and the Collateral Agent shall take no such actions, until the occurrence and during the continuance of an Event of Default and receipt of notice by the applicable Pledged Account Bank from the Collateral Agent under the applicable Account Control Agreement (only to as defined below) in accordance with the extent so directed), as the case may beterms thereof.
(gf) The Administrative Collateral Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) Grantor transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s 's obligations under the Loan Documents if an Event of Default shall have occurred and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Accountbe continuing.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Pac-West Telecomm Inc)
Maintaining the Account Collateral. So long as any Loan or any other Obligation Until the termination of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitmentthe security interest granted hereunder:
(a) If a Specified Default shall have occurred and be continuing and Subject to Section 30 hereof, on the Administrative Agent shall have so requested, within forty-five (45) days after any such requestEffective Date, each Grantor shall will maintain all Account Collateral only with the Senior Agent or with banks (ithe "Pledged Account Banks") cause each bank with whom a Deposit Account is maintained to agree that have agreed, in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment but not including claims for fees or returned items) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the “"Account Control Agreement”"); provided, however, this Section 5(a) shall not apply to Other Deposit Accounts listed in Schedule VII hereto so long as the amounts on deposit in such Other Deposit Accounts shall not, either individually or in the aggregate exceed the sum of (i) the amount necessary to cash collateralize Debt described in Section 7.2 (b)(iii)(H) of the Note Purchase Agreement, (ii) instruct all the amount necessary to cash collateralize Debt securing Liens of the type described in clause (iv) for the definition of "Permitted Liens" and (iii) $8,500,000 for any payroll account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in retail account.
(i) After the name occurrence and under during the control continuance of such Pledged Account Bank under a lockbox agreement duly executed by any Event of Default and at the Grantor and such Pledged Account Bank, in form and substance satisfactory to written direction of the Administrative Collateral Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requestedshall, within ten (10 Business Days after any such requestsubject to Section 30 hereof, each Grantor will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) Affiliate of such Grantor obligated at any time to make any payment to such Grantor for any reason (an “"Obligor”") to make such payment to an Other Deposit Account or to the Collateral Account or, if permitted by and shall pay to the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, Collateral Agent for deposit in the Collateral Account orAccount, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral.
(ii) After the occurrence and during the continuance of any Event of Default and at the written direction of the Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuingAgent, each Grantor hereby authorizes the Administrative Agent shall, subject to notify Section 30 hereof, promptly instruct each Obligor that Person who is not an Affiliate of such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor Grantor obligated at any time to make all payments any payment to such Grantor for any reason to make such payment to an Other Deposit Account or to the Collateral Account or as otherwise directed by and shall pay to the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to Collateral Agent for deposit in the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may directDay, in same day funds, an amount equal to the credit balance all proceeds of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any GrantorCollateral.
(dc) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Collateral Agent shall have received at least ten (10) 10 days’ ' prior written notice of such additional bank or such new deposit account account, and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of subject to Section 6(a)30 hereof, the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V VI hereto shall be automatically amended to include such Other Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that that, subject to Section 30 hereof, the Grantor may terminate a an Other Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Other Deposit Account, if it gives the Administrative Collateral Agent at least ten (10) 10 days’ ' prior written notice of such termination (and, upon such termination, Schedule V VI hereto shall be automatically amended to delete such Pledged Account Bank and Other Deposit Account).
(ed) To the extent Section 6(a) above is applicable, if during the continuation Upon any termination by a Grantor of any Specified Default, a Grantor terminates any Other Deposit Account covered by an Account Control Agreement any Grantor, or by any Pledged Account Bank with respect thereto, such Grantor will immediatelywill, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b)subject to Section 30 hereof, immediately (i) transfer all funds and property held in such terminated Other Deposit Account to another Other Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank listed in Schedule VI or to the Collateral Account and (ii) notify all Obligors that were making payments to such Other Deposit Account to make all future payments to another Other Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement listed in Schedule VI hereto or to the Collateral Account, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Collateral Agent.
(fe) Upon the occurrence and during the continuance of a Specified DefaultSubject to Section 30 hereof, the Administrative Collateral Agent shall have the sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower Company or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(gf) The Administrative If an Event of Default shall have occurred and be continuing, the Collateral Agent may, subject to Section 30 hereof, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s 's obligations under the Loan Note Documents and (ii) transfer, or direct the transfer of, funds from the Other Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Icg Communications Inc /De/)
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation (other than contingent obligations) of any Loan Party under any Loan Document shall remain unpaid, unpaid or any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be outstanding unless cash collateralized or otherwise supported in effect a manner reasonably acceptable to the Collateral Agent or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and Each Grantor will maintain deposit accounts only with the Administrative financial institution acting as Collateral Agent shall have so requested, within forty-five hereunder or with banks (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account BankBanks”), ) that have agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the a “Deposit Account Control Agreement”); provided, however, this Section 4(a) shall not apply to deposit accounts (i) in which all funds therein are swept on a daily basis and only to another deposit account over which there is in effect a Deposit Account Control Agreement or (ii) instruct all account debtors to make all payments to one operated solely as a payroll account, provided, that no funds or more other Pledged Account Banks by instructing that such payments investments in excess of $10,000,000 shall at any time be remitted to a post office box which shall be on deposit in the name and under payroll accounts in the control of such Pledged Account Bank under a lockbox agreement duly executed aggregate; provided, further however, the Company shall have forty-five (45) days (unless otherwise agreed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only ) from the Closing Date to comply with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingrequirements of this Section 4.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such requestSubject to Section 4(a), each Grantor will shall instruct all of its account debtors to remit all payments to (i) immediately instruct each Person (including any Governmental Party the applicable “P.O. Boxes” or “Lockbox Addresses” of the applicable Pledged Account Banks with respect to the extent that a Trigger Event has occurred) obligated at any time to make any payment to all accounts of such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account oraccount debtor, if permitted which remittances shall be collected by the Administrative Agent, applicable Pledged Account Banks and deposited into the applicable Pledged Deposit Account or (ii) any other deposits accounts in which all funds therein are swept on a daily basis and only to another deposit account over which there is in effect a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative AgentControl Agreement.
(c) If During the continuance of a Specified Default shall have occurred Dominion Event, upon notice from the Administrative Agent or the Required Lenders to the Company, upon the terms and be continuing, concurrently with or at any time after entering into an subject to the conditions set forth in the Deposit Account Control Agreement with any Agreement, all amounts held in all of the Pledged Account Bank, if requested Deposit Accounts by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to Grantors shall be wired by the Collateral Account, at the end close of business on each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, into an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with the Collateral Agent (the “Concentration Account”) and all collected amounts held in the Concentration Account shall be applied as provided in Section 14. For purposes hereof a “Dominion Event” shall mean any then existing Pledged Account Bank unless period (i) commencing on the Administrative Agent shall have received at least ten date on which either (x) an Event of Default has occurred and is continuing or (y) the Specified Liquidity Amount (based on the Borrowing Base Certificate last delivered) is less than the greater of (x) $60,000,000 and (y) 10) days’ prior written notice % of such additional bank or such new deposit account the aggregate Revolving Credit Commitments and (ii) if ending on the Administrative Agent first date thereafter on which (x) no Event of Default exists and (y) the Specified Liquidity Amount (based on the Borrowing Base Certificate last delivered) has requested been equal to or greater than the greater of (m) $60,000,000 and (n) 10% of the aggregate Revolving Credit Commitments for 30 consecutive days (the “Liquidity Cure”); provided, however, that a Liquidity Cure may be used as the Grantors comply with basis for the requirement of Section 6(a), the Administrative Agent shall have received, in the case termination of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary Dominion Event no more than two times in any other agreement relating to the Collateral AccountFiscal Year; provided further, the L/C Collateral Account or the Deposit Accounts, as the case may behowever, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will Dominion Event shall be paid or released deemed to or have occurred for the account of, or withdrawn by or for the account of, the Borrower or any other Person period from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only Closing Date to the extent so directed), as date which is 30 days after the case may beClosing Date.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Security Agreement (Building Materials Manufacturing Corp)
Maintaining the Account Collateral. So Subject to the rights of the Collateral Monitoring Agent under the Revolving Credit Agreement, the Security Agreement (as defined in the Revolving Credit Agreement, the “Revolver Security Agreement”) and the Revolver Intercreditor Agreement (as hereinafter defined), so long as any Term Loan Advance or any other Obligation (other than contingent obligations) of any Loan Party under any Loan Document or any Existing Indenture shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect unpaid or any Lender Party shall have any Term Loan Commitment:
(a) If Each Grantor will maintain deposit accounts only with the financial institution acting as Collateral Agent hereunder or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance satisfactory to the Administrative Collateral Agent (the a “Deposit Account Control Agreement”); provided, however, this Section 5(a) shall not apply to deposit accounts (i) in which all funds therein are swept on a daily basis and only to another deposit account over which there is in effect a Deposit Account Control Agreement or (ii) instruct all account debtors to make all payments to one operated solely as a payroll account, provided, that no funds or more other Pledged Account Banks by instructing that such payments investments in excess of $10,000,000 shall at any time be remitted to a post office box which shall be on deposit in the name and under payroll accounts in the control of such Pledged Account Bank under a lockbox agreement duly executed aggregate; provided, further, however, the Company shall have forty-five days (unless otherwise agreed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only ) from the Closing Date to comply with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingthis requirements of this Section 5.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such requestSubject to Section 5(a), each Grantor will shall instruct all of its account debtors to remit all payments to (i) immediately instruct each Person (including any Governmental Party the applicable “P.O. Boxes” or “Lockbox Addresses” of the applicable Pledged Account Banks with respect to the extent that a Trigger Event has occurred) obligated at any time to make any payment to all accounts of such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account oraccount debtor, if permitted which remittances shall be collected by the Administrative Agent, applicable Pledged Account Banks and deposited into the applicable Pledged Deposit Account or (ii) any other deposits accounts in which all funds therein are swept on a daily basis and only to another deposit account over which there is in effect a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative AgentControl Agreement.
(c) If a Specified Default shall have occurred During the continuance of an Event of Default, upon notice from the Administrative Agent or the respective trustee under the respective Existing Indenture, upon the terms and be continuing, concurrently with or at any time after entering into an subject to the conditions set forth in the Deposit Account Control Agreement with any Agreement, all amounts held in all of the Pledged Account Bank, if requested Deposit Accounts by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to Grantors shall be wired by the Collateral Account, at the end close of business on each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, into an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Concentration Account”) with Bank of America, N.A. and all collected amounts held in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this AgreementConcentration Account shall be applied as provided in Section 19.
Appears in 1 contract
Samples: Security Agreement (Building Materials Manufacturing Corp)
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document Secured Obligations shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect outstanding or any Lender Party shall have any Commitment:
, subject to the terms and provisions of the Intercreditor Agreement: (a) If Each Grantor will maintain Pledge Deposit Accounts only with the financial institution acting as Collateral Agent hereunder or with a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “Pledged Account Bank”), ) that has agreed with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Borrower and Collateral Agent (the each, a “Deposit Account Control Agreement”); provided, however, that this Section 5(a) shall not apply to an Excluded Account or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to where the Collateral Agent is the bank. So long as a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing.
(b) If a Specified Default shall have Cash Control Trigger Event has not occurred and be continuing and is continuing, the Administrative Collateral Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will agrees that (i) immediately instruct each Person (including it shall not issue any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice Bank or withhold any withdrawal rights from such Grantor with respect to funds from time to time credited to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement upon (x) cure (but not a partial cure) or waiver of Section 6(a)any previously continuing Cash Control Trigger Event, the Administrative Collateral Agent shall have receivedthereafter take such action, in at the case expense of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto as shall be automatically amended reasonably necessary to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect reconvey to such Deposit Account, if it gives Grantor the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct give instructions directing the disposition of funds with respect credited to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may besuch deposit account.
(g) The Administrative Agent may, at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any Non-Shared Secured Obligations (other Obligation of any Loan Party under any Loan Document than indemnification obligations that are not yet due and payable) which are accrued and payable shall remain unpaidunpaid and unsatisfied, or any Letter of Credit (with respect to which any reimbursement obligation related thereto constitutes a Non-Shared Secured Obligation) shall be remain outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall Each Grantor will maintain all Designated Accounts only with the Collateral Agent or with banks (the "Pledged Account Banks") that have occurred and be continuing and the Administrative Agent shall have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Collateral Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Collateral Agent (as set forth in the Account Control Agreement) directing the disposition of funds in any Account Collateral the Designated Accounts without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate (other than as agreed between any Pledged Account Bank and the Collateral Agent) in favor of the Administrative Collateral Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D B hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the “"Account Control Agreement”"); provided, however, this Section 6(a) or (ii) instruct all account debtors shall not apply to make all payments Other Deposit Accounts listed in Schedule V hereto, as such Schedule may be updated from time to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingtime.
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Grantor will (i) immediately instruct each Person (including any Governmental Party Subject in all respects to the extent that a Trigger Event has occurredprovisions of Section 5(g) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Defaulthereof, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Collateral Agent shall have received at least ten (10) 10 days’ ' prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Collateral Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Collateral Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Collateral Agent of such Account Control Agreement or supplement, Schedule V IV hereto shall be automatically amended to include such Other Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not may terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Designated Account, if it gives the Administrative Collateral Agent at least ten (10) 10 days’ ' prior written notice of such termination (and, upon such termination, Schedule V IV hereto shall be automatically amended to delete such Pledged Account Bank and Other Deposit AccountAccount without any additional formal actions or agreements). For the avoidance of doubt, the provisions of this Section 6(b) shall not apply to any deposit account that any Grantor manages or maintains on behalf of third parties, such as deposit accounts maintained or managed by any Grantor for a joint venture in which third parties participate.
(ec) To Subject in all respects to the extent provisions of Section 6(a5(g) above is applicablehereof, if during the continuation upon any termination by a Grantor of any Specified Default, a Grantor terminates any Other Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediatelypromptly (i) either (at such Grantor's election), if the Administrative Agent has required that the Grantors (A) comply with the provisions regarding the opening of Sections 6(anew deposit accounts as set forth in the first sentence of Section 6(b) and or (bB) subject to the restrictions set forth in Section 6(f), (i) transfer all funds and property held in such terminated Other Deposit Account to another Other Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account listed in Schedule IV and (ii) notify all Obligors that were making payments to such Other Deposit Account to make all future payments to another Other Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Accountlisted in Schedule IV hereto, in each case so that the Administrative Collateral Agent shall have a continuously perfected security interest in such Account CollateralDesignated Accounts. Subject in all respects to the provisions of Section 5(g) hereof, funds after the occurrence and property. Each during the continuance of an Event of Default, each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Collateral Agent.
(fd) Upon the occurrence earlier of (x) the day on which all Obligations under the Credit Agreement have been declared due and during payable prior to the continuance state maturity thereof and (y) the 15/th/ day after any Event of a Specified DefaultDefault shall have occurred and be continuing under the Credit Agreement, the Administrative Collateral Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Designated Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(ge) The Administrative Collateral Agent may, at any time and after notice to the Borrower (provided, however, that the failure to give any such notice to the Borrower shall not affect the validity of any action taken by the Collateral Agent pursuant to the provisions of this Section 6(e)), but without notice to, or consent from, from the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral Designated Accounts to satisfy the Grantor’s 's obligations under the Loan Documents if (i) (A) a payment default in respect of principal under such Loan Documents shall have occurred and be continuing for a period greater than or equal to three Business Days, or (B) a payment default in respect of any amount other than principle due under such Loan Document shall have occurred and be continuing for a period greater than or equal to five Business Days, or (ii) transfer, or direct an acceleration of the transfer of, funds from the Deposit Accounts to the Collateral AccountFacilities shall have occurred and be continuing.
(hf) Upon Each of the request by Grantors agrees that at no time shall the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit aggregate amount on deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and Other Deposit Accounts Listed in Schedule V hereto (other than any Other Deposit Account that is subject to this Agreementa Permitted Lien) exceed $20,000,000.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan Advance or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and Each Grantor will maintain all Account Collateral only with the Administrative Agent shall or with banks (the “Pledged Account Banks”) that have so requestedagreed, within forty-five (45) days after any such request, each Grantor shall (i) cause each bank with whom a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a “the Pledged Account Bank”)Banks, to (i) comply with instructions originated by the Administrative Agent directing the disposition of funds in any the Account Collateral without the further consent of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing Grantor and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank Banks (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment recoupment) to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D heretoJ hereto for ACH Deposit Accounts or Exhibit B hereto for Other Deposit Accounts, or shall otherwise be in form and substance satisfactory to the Administrative Agent (the “Account Control Agreement”) or (ii) instruct all account debtors to make all payments to one or more other Pledged Account Banks by instructing that such payments be remitted to a post office box which shall be in the name and under the control of such Pledged Account Bank under a lockbox agreement duly executed by the Grantor and such Pledged Account Bank, in form and substance satisfactory to the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuing).
(b) If a Specified Default shall have occurred and be continuing and the Administrative Agent shall have so requested, within ten (10 Business Days after any such request, each Each Grantor will (i) immediately instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor”) to make such payment to the Collateral Account or, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or and (ii) if so requested, deposit in the Collateral Account or, if permitted by the Administrative Agent, a Deposit Account or pay to the Administrative Agent for deposit in a Deposit Account, at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agent.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) 10 days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V VII hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(ed) To the extent Section 6(a) above is applicable, if during the continuation of Upon any Specified Default, termination by a Grantor terminates of any Deposit Account covered by an Account Control Agreement such Grantor, or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), immediately (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account listed in Part II of Schedule VII and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, listed in each case Part II of Schedule VII hereto so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(e) The Borrower may draw checks on, and otherwise withdraw amounts only from, the Deposit Accounts and in such amounts as may be required in the ordinary course of business (including, without limitation, to pay or prepay Debt outstanding under the Loan Documents).
(f) Upon the occurrence and during the continuance of a Specified Default, the The Administrative Agent shall have sole right to direct the disposition of funds with respect to each of the Collateral Account, Account and the L/C Collateral Account, and, if Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, Account and the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, Account and the L/C Collateral Account or the Deposit AccountsAccount, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, Account and the L/C Collateral Account or the Deposit Accounts (only to the extent so directed)Account, as the case may be.
(g) The Administrative Agent may, (i) at any time and without notice to, or consent from, the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Account Collateral to satisfy the Grantor’s obligations under the Loan Documents if an Event of Default shall have occurred and be continuing and (ii) at any time after the Collateral Account has been opened and without notice to, or consent from, the Grantor, transfer, or direct the transfer of, funds from the Deposit Accounts to the Collateral Account.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Maintaining the Account Collateral. So long as any Loan or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit shall be outstanding, any Secured Hedge Agreement shall be in effect outstanding or any Lender Party shall have any Commitment:
(a) If a Specified Default shall have occurred and be continuing and Subject to Section 7.13(b) of the Administrative Agent shall have so requested, within forty-five (45) days after any such requestCredit Agreement, each Grantor shall (iother than the Holdings Grantors) cause each bank will maintain deposit accounts only with whom the financial institution acting as Collateral Agent hereunder or with a Deposit Account is maintained to agree in a record authenticated by the Grantor, the Administrative Agent and such bank (a ““ Pledged Account BankBank ”), ) that has entered into an agreement with such Grantor and the Collateral Agent to comply with instructions originated by the Administrative Collateral Agent directing the disposition of funds in any Account Collateral such deposit account without the further consent of the such Grantor; provided that , such instructions (including any “Notice of Exclusive Control”) shall be withdrawn in the event such Specified Default shall no longer be continuing and (ii) waive or subordinate in favor of the Administrative Agent all claims of the Pledged Account Bank (including, without limitation, claims by way of a security interest, lien or right of setoff or right of recoupment agreement to the extent set forth in Exhibit D hereto) to Account Collateral, which authenticated record shall be substantially in the form of Exhibit D hereto, or shall otherwise be in form and substance reasonably satisfactory to the Administrative Collateral Agent (the “a “ Deposit Account Control AgreementAgreement ”); provided , however , that this Section 7(a ) or (ii) instruct all account debtors shall not apply to make all payments Excluded Non-Pledged Accounts. The Collateral Agent agrees not to one or more other Pledged Account Banks by instructing that such payments be remitted issue any instructions to a post office box which shall be in the name and under the control of such any Pledged Account Bank under a lockbox agreement duly executed by except after the Grantor occurrence and such Pledged Account Bank, in form and substance satisfactory to during the Administrative Agent. Thereafter, each Grantor will maintain all Account Collateral only with the Administrative Agent or Pledged Account Banks unless such Specified Default shall no longer be continuingcontinuance of an Event of Default.
(b) If a Specified Default shall have occurred After the occurrence and be continuing and during the Administrative Agent shall have so requestedcontinuance of an Event of Default, within ten (10 Business Days after any such requestupon the written request of the Collateral Agent, each Grantor (other than the Holdings Grantors) will (i) immediately promptly instruct each Person (including any Governmental Party to the extent that a Trigger Event has occurred) obligated at any time to make any payment to such Grantor for any reason (an “Obligor“ Obligor ”) to make such payment to a Pledged Deposit Account or the Cash Collateral Account, except that such Grantor shall not be under such obligation with respect to Persons (i) making payments to a Pledged Deposit Account or the Cash Collateral Account oras of the Closing Date, if permitted by the Administrative Agent, to a Deposit Account maintained with a Pledged Account Bank and/or (ii) if so requested, deposit making payments to such Grantor of less than $5,000,000 a year in the Collateral Account oraggregate, or (iii) making payments to accounts not purported to be subject to the security interest of the Secured Parties in accordance with the Credit Agreement, if permitted by the Administrative Agent, a Deposit Account at the end of each Business Day, all proceeds of Collateral and all other cash of such Grantor. If a Specified Default shall have occurred and be continuing, each Grantor hereby authorizes the Administrative Agent to notify each Obligor that such payments have been assigned to the Administrative Agent as collateral hereunder and to instruct such Obligor to make all payments to the Collateral Account or as otherwise directed by the Administrative Agentany.
(c) If a Specified Default shall have occurred and be continuing, concurrently with or at any time after entering into an Account Control Agreement with any Pledged Account Bank, if requested by the Administrative Agent, each Grantor will instruct such Pledged Account Bank to transfer to the Collateral Account, at the end of each Business Day or such other frequency as the Administrative Agent may direct, in same day funds, an amount equal to the credit balance of the Deposit Account in such Pledged Account Bank. If any Grantor shall fail to give any such instructions to any Pledged Account Bank, the Administrative Agent may do so without further notice to any Grantor.
(d) During the continuation of any Specified Default, each Grantor agrees that it will not add any bank that maintains a deposit account for such Grantor or open any new deposit account with any then existing Pledged Account Bank unless (i) the Administrative Agent shall have received at least ten (10) days’ prior written notice of such additional bank or such new deposit account and (ii) if the Administrative Agent has requested that the Grantors comply with the requirement of Section 6(a), the Administrative Agent shall have received, in the case of a bank or Pledged Account Bank that is not the Administrative Agent, an Account Control Agreement authenticated by such new bank and such Grantor, or a supplement to an existing Account Control Agreement with such then existing Pledged Account Bank, covering such new deposit account (and, upon the receipt by the Administrative Agent of such Account Control Agreement or supplement, Schedule V hereto shall be automatically amended to include such Deposit Account). During the continuation of any Specified Default, each Grantor agrees that it will not terminate any bank as a Pledged Account Bank or terminate any Account Collateral, except that the Grantor may terminate a Deposit Account, and terminate a bank as a Pledged Account Bank with respect to such Deposit Account, if it gives the Administrative Agent at least ten (10) days’ prior written notice of such termination (and, upon such termination, Schedule V hereto shall be automatically amended to delete such Pledged Account Bank and Deposit Account).
(e) To the extent Section 6(a) above is applicable, if during the continuation of any Specified Default, a Grantor terminates any Deposit Account covered by an Account Control Agreement or any Pledged Account Bank with respect thereto, such Grantor will immediately, if the Administrative Agent has required that the Grantors comply with the provisions of Sections 6(a) and (b), (i) transfer all funds and property held in such terminated Deposit Account to another Deposit Account covered by an Account Control Agreement maintained with a Pledged Account Bank or to the Collateral Account and (ii) notify all Obligors that were making payments to such Deposit Account to make all future payments to another Deposit Account maintained with a Pledged Account Bank covered by an Account Control Agreement or to the Collateral Account, in each case so that the Administrative Agent shall have a continuously perfected security interest in such Account Collateral, funds and property. Each Grantor agrees to terminate any or all Account Collateral and Account Control Agreements upon request by the Administrative Agent.
(f) Upon After the occurrence and during the continuance of a Specified Default, the Administrative Agent shall have sole right to direct the disposition an Event of funds with respect to each of the Collateral Account, the L/C Collateral Account, and, if Default under Section 6(a) shall be applicable, the Deposit Accounts; and it shall be a term and condition of each of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts (in the case of Deposit Accounts, only to the extent so directed by the Administrative Agent to the applicable Pledged Account Bank8.01(b), notwithstanding any term or condition to the contrary in any other agreement relating to the Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto) will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from the Collateral Account, the L/C Collateral Account or the Deposit Accounts (only to the extent so directed), as the case may be.
(g) The Administrative or (h) of the Credit Agreement, the Collateral Agent may, at any time and without notice to, or consent from, from the Grantor, if an Event of Default shall have occurred and be continuing (i) transfer, or direct the transfer of, funds from the Pledged Deposit Accounts or the Cash Collateral Account Collateral to satisfy the Grantor’s obligations under the Loan Documents and (ii) transferObligations. The Collateral Agent agrees to give notice to such Grantor of such transfer or direction; provided , or direct the transfer of, funds from the Deposit Accounts to however that any failure by the Collateral AccountAgent to give such notice shall not invalidate such transfer or direction.
(h) Upon the request by the Administrative Agent at any time or as otherwise required in order to Cash Collateralize Letters of Credit pursuant to the Credit Agreement, the Borrower shall immediately open a letter of credit deposit account (the “L/C Collateral Account”) with Bank of America, N.A. in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agreement and subject to this Agreement.
Appears in 1 contract
Samples: Security Agreement (Madison Square Garden Entertainment Corp.)
