Control Agreements. (A) Each Note Party shall cause each of its Deposit Accounts (other than Excluded Accounts), lockbox accounts and securities accounts to be subject to a “springing” account control agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereof. (B) All account debtors or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check. (C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided in accordance with this Section 4.9. (D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address set forth in Section 11.3 below.
Appears in 2 contracts
Sources: Note Purchase Agreement (Arena Group Holdings, Inc.), Note Purchase Agreement (theMaven, Inc.)
Control Agreements. (Aa) Each Note Party shall cause each of its Deposit Accounts Debtor represents, covenants and warrants that such Debtor does not have or maintain any deposit accounts (other than Excluded Deposit Accounts)) as the date hereof except as set forth in Schedule III-1 hereto. The Debtors shall not, lockbox accounts directly or indirectly, after the date hereof, establish or maintain any deposit account unless each of the following conditions is satisfied: (i) Agent shall have received not less than five (5) Business Days’ prior written notice of the intention of any Debtor to open or establish such account which notice shall specify in reasonable detail and securities accounts specificity acceptable to Agent the name of the account, the owner of the account, the name and address of the bank at which such account is to be opened or established, the individual at such bank with whom such Debtor is dealing and the purpose of the account, (ii) the bank where such account is opened or maintained shall be acceptable to Agent, and (iii) in the case of any deposit account that is not an Excluded Deposit Account, on or before the opening of such deposit account, such Debtor shall deliver to Agent a Deposit Account Control Agreement with respect to such deposit account duly authorized, executed and delivered by such Debtor and the bank at which such deposit account is opened and maintained. No later than forty-five (45) days after the date hereof, each Debtor shall cause each deposit account (other than Excluded Deposit Accounts) held or maintained by such Debtor on the date hereof to be subject to a “springing” account control agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless a Account Control Agreement duly executed by such Debtor and the bank at which such deposit account is entered into concurrently with the opening thereofmaintained and delivered to Agent.
(Bb) All account debtors income earned or other payment obligors proceeds received by any Debtor and any direct or indirect Domestic Subsidiary thereof during the term of such Note Party this Agreement shall be directed to directly remit all payments on each Note Party’s Accounts directly to deposited promptly upon (and in any event within one Business Day of) receipt thereof by such Debtor in a Deposit Account deposit account that is subject to a Control Agreement and each Note Party will immediately deposit in a fully executed Deposit Account subject to a Control Agreement all payments received from account debtors Agreement, except for such income earned or other payments constituting proceeds of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions be deposited in an Excluded Deposit Account or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided Frost Bank Excluded Account in accordance with this Section 4.9.
(D) Agreement . Each Note Party hereby agrees Debtor shall take all steps to ensure that all payments made of its account debtors forward all items of payment to a deposit account that is subject to a fully executed Deposit Account Control Agreement, and in no event shall any Debtor direct any account debtor to forward any item of payment to any account other than a deposit account that is subject to a fully executed Deposit Account Control Agreement. As used herein, the term “Excluded Deposit Account” means any deposit account established and used exclusively for payroll, securities account payroll taxes and similar employment taxes or otherwise received by Agent other employee wage and whether on benefit payments in the Accounts ordinary course of business to or as proceeds of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself any Debtor’s employees and identified to Agent as being an Excluded Deposit Account. Each Debtor represents and warrants that as of the date hereof, all of the Excluded Deposit Accounts maintained by any Debtor are as set forth on Schedule III-2 hereto. Each Debtor covenants and agrees that during the term of this Agreement (i) each Excluded Deposit Account shall at all times be used exclusively for payroll, payroll taxes and similar employment taxes or other Secured Parties. If employee wage and benefit payments in the ordinary course of business to or for the benefit of any Note PartyDebtor’s employees, and (ii) such Debtor will not make or cause any of their respective Affiliatesits direct or indirect subsidiaries to make any deposits in any Excluded Deposit Account other than those necessary to fund payroll, employees, agents payroll taxes and similar employment taxes or any other Persons acting employee wage and benefit payments in the ordinary course of business to or for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds the benefit of any Note PartyDebtor’s Accounts or other Collateralemployees. As used herein, such Note Party or such Person shall hold such instrument or funds the term “Frost Bank Excluded Account” means the deposit account maintained by Nauticus Sub with Frost Bank (Acct No. 00001007) with a CD securing obligations under corporate credit cards and listed in trust for Agent, Schedule III-3 hereto. Each Debtor covenants and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and agrees that during the continuance term of an Event this Agreement the aggregate amount of Default, to Agent deposits contained in the Frost Bank Excluded Account shall not exceed $750,000 at its address set forth in Section 11.3 belowany time.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Nauticus Robotics, Inc.), Pledge and Security Agreement (Nauticus Robotics, Inc.)
Control Agreements. (A) Each Note Party Obligor shall cause each promptly notify the Agent of its Deposit Accounts (other than Excluded Accounts), lockbox accounts and any securities accounts account or deposit account located in the United States of America that it maintains from time to be subject to a “springing” time. Each Obligor shall enter into one or more securities account control agreement agreements and deposit account control agreements in form and substance reasonably satisfactory to the Agent, acting reasonably, that provide the Agent with “control” under the UCC (each such agreement being referred to herein as a “Control Agreement”)) with respect to each such securities account and deposit account of such Obligor that is not a Segregated Government Deposit Account or a payroll account. No Note Party will Without the prior approval of the Agent, no Obligor shall open or maintain any new Deposit Accounts, lockbox securities account or securities deposit account (other than “Excluded Accounts”Segregated Government Deposit Accounts and payroll accounts) unless a Control Agreement that is entered into concurrently with the opening thereof.
(B) All account debtors or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account not subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of deposit account (other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, than a Segregated Government Deposit Account) shall receive any monies, checks, notes, drafts Medicare or Medicaid payments made by a federal or state governmental unit or an intermediary for a federal or state government unit. At any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after time following the occurrence and during the continuance of an Event of Default, each Guarantor shall, if requested by the Agent, enter into one or more tri-party agreements (each such agreement being referred to herein as a “Tri-Party Agreement”) with the Agent at its address and each applicable depository bank with respect to each Segregated Government Deposit Account, pursuant to which such Obligor shall agree to provide such instructions as the Agent shall from time to time request with respect to the applicable depository bank regarding the manner and frequency with which funds shall be transferred from such Segregated Government Deposit Account to another deposit account of such Obligor that is subject to a Control Agreement. No Obligor shall change any instruction set forth in Section 11.3 belowa Tri-Party Agreement without providing the Agent with ten (10) days prior written notice thereof.
Appears in 2 contracts
Sources: Credit Agreement (CRH Medical Corp), Credit Agreement (CRH Medical Corp)
Control Agreements. (Aa) Each Note Party shall cause each Schedule 6.11 sets forth all deposit accounts maintained by the Loan Parties as of its Deposit Accounts (other than Excluded Accounts), lockbox accounts and securities accounts to be subject to a “springing” account control agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”)the Closing Date. No Note Party will open any new Deposit Accounts, lockbox account Before or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereof.
by the Borrower or any other Loan Party of (Bi) All any deposit account, securities account, lockbox account, concentration account, collection account debtors or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account disbursement account, and (ii) any account which is not subject to a Control Agreement and each Note Party will immediately deposit in a Deposit that previously constituted an Immaterial Account subject or an Excluded Account ceasing to a Control Agreement all payments received from account debtors constitute an Immaterial Account or other payments constituting proceeds of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Excluded Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwise, in each case, the Borrower shall deliver to the extent constituting CollateralAdministrative Agent a schedule (a “Supplemental Account Identification Schedule”) which provides, will be subject to in respect of each such account (A) the Lien name and location of Agenteach bank and securities intermediary at which the Borrower or such Loan Party maintains a deposit account, for securities account, lockbox account, concentration account, collection account or disbursement account in the benefit of itself United States and (B) the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts account number and account name or other Collateralrelevant descriptive data with respect to each such account and such other information with respect to each such account as the Administrative Agent shall reasonably request.
(b) Subject to Section 6.15(a) with respect to accounts in existence on the Closing Date, such Note on or before the date any Loan Party deposits any funds or such Person shall hold such instrument or permits any funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, deposited in kind, or credited to a Deposit any account (other than an Excluded Account or an Immaterial Account) not currently subject to a Control Agreement, Borrower shall cause to be delivered to the Administrative Agent a Control Agreement andwith respect to such account, if requested in each case duly executed and delivered by the Borrower or the relevant Loan Party and by the bank or securities intermediary that maintains such account. The applicable Loan Party shall be the sole account holder of each deposit account, securities account, lockbox account, concentration account, collection account or disbursement account on Schedule 6.11 or a Supplemental Account Identification Schedule and shall not allow any other Person (other than the ABL Agent, the Administrative Agent after the occurrence or any agent or similar representative of Secured Credit Facilities and during the continuance of an Event of DefaultPermitted Ratio Debt permitted hereunder) to have control over a deposit account, to Agent at its address set forth in Section 11.3 belowsecurities account, lockbox account, concentration account, collection account or disbursement account or any property deposited therein.
Appears in 2 contracts
Sources: Second Lien Term Loan Credit Agreement (Nabors Industries LTD), Term Loan Credit Agreement (Parker Drilling Co /De/)
Control Agreements. With respect to any Mortgage Asset or collateral for a Mortgage Asset that is an uncertificated security (A) Each Note Party shall cause each of its Deposit Accounts (other than Excluded Accountsas defined in the UCC), lockbox accounts and securities accounts to be subject to entitlement (as defined in the UCC) or is held in a “springing” account control agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless as defined in the UCC), the Borrower shall provide to the Administrative Agent a Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors or other payment obligors of such Note Party control agreement, which shall be directed acceptable to directly remit all payments on each Note Party’s Accounts directly the Administrative Agent in its discretion and shall be delivered to a Deposit Account subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors the Custodian under the Custodial Agreement, executed by the issuer of the Mortgage Asset or other payments constituting proceeds of Collateral received by such Note Party the collateral for the Mortgage Asset or the related securities intermediary (as defined in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waivedUCC), as applicable, and no other Event granting control (as defined in the UCC) of Default exists at such time, Agent shall give notice Mortgage Asset or collateral for such Mortgage Asset to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Administrative Agent and whether on the Accounts or as proceeds of other Collateral or otherwiseproviding that, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, the Administrative agent shall be entitled to notify the issuer or securities intermediary, as applicable, that such issuer or securities intermediary shall comply exclusively with the instructions or entitlement orders (as defined in the UCC), as applicable, of the Administrative Agent at its address without the consent of the Borrower or any other Person and no longer follow the instructions or entitlement orders, as applicable, of the Borrower or any other Person (other than the Administrative Agent). All of the Borrowers’ right, title and interest in the Mortgage Assets that constitute CMBS Securities shall be pledged to the Administrative Agent on the applicable Borrowing Date. The Borrowers shall deliver to the Custodian on behalf of the Administrative Agent as agent for the Lenders a complete set forth of all transfer documents to be completed by the Administrative Agent as agent for the Lenders and executed copies of any transfer documents to be completed by the applicable Borrower, in Section 11.3 beloweither case in blank, but in form sufficient to allow transfer and registration of such Mortgage Assets to the Administrative Agent as agent for the Lenders no later than the proposed Borrowing Date for the relevant Mortgage Asset, and such CMBS Securities shall be medallion guaranteed. All transfers of certificated securities from the Borrowers to the Administrative Agent as agent for the Lenders shall be effected by physical delivery to the Custodian of the Mortgage Assets (duly endorsed by the applicable Borrower, in blank), together with a stock power executed by the applicable Borrower, in blank. With respect to Mortgage Assets that shall be delivered through the DTC or the National Book Entry System of the Federal Reserve or any similar firm or agency, as applicable, in book–entry form and credited to or otherwise held in an account, the Borrowers shall take such actions necessary to provide instruction to the relevant financial institution, clearing corporation, securities intermediary or other entity to effect and perfect a legally valid delivery of the relevant interest granted herein to the Administrative Agent as agent for the Lenders hereunder to be held in the Securities Account. Mortgage Assets delivered in book–entry form shall be under the custody of and held in the name of the Administrative Agent as agent for the Lenders in the Securities Account.
Appears in 2 contracts
Sources: Credit Agreement (Northstar Realty), Credit Agreement (CapLease, Inc.)
Control Agreements. Within sixty (A60) Each Note Party shall cause days of the Effective Date (or such later date as the Administrative Agent may agree to in its sole discretion), such Grantor will provide to the Administrative Agent, a Deposit Account Control Agreement, a Securities Account Control Agreement or a Commodity Account Control Agreement, as applicable, for each of its Deposit Accounts Account, Securities Account and Commodity Account (other than any Excluded Accounts), lockbox accounts and securities accounts to be subject to Deposit Account) existing on the Effective Date for which a “springing” account control agreement has not been delivered as of the Effective Date or evidence reasonably satisfactory to the Administrative Agent that such Deposit Account, Securities Account or Commodity Account has been closed and the remaining balance thereof, if any, has been transferred to an account held with JPMCB. For each Deposit Account, Securities Account or Commodity Account (other than any Excluded Deposit Account) opened after the Effective Date, such Grantor will provide a Deposit Account Control Agreement, a Securities Account Control Agreement or a Commodity Account Control Agreement, as applicable, within ten (10) Business Days (or such later date as the Administrative Agent agrees to in its sole discretion) after the opening of such Deposit Account, Securities Account or Commodity Account. Pursuant to such control agreements, in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party the Administrative Agent, such Grantor will open any new cause the depository bank that maintains such Deposit AccountsAccount, lockbox account securities intermediary that maintains such Securities Account, or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors or other payment obligors of commodity intermediary that maintains such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waivedCommodity Account, as applicable, to agree to comply at any time with instructions from the Administrative Agent to such depository bank, securities intermediary or commodities intermediary directing the disposition of funds from time to time credited to such Deposit Account, Securities Account or Commodity Account, without further consent of such Grantor, and no take such other Event action as the Administrative Agent may approve in order to perfect the Administrative Agent’s security interest in such Deposit Account, Securities Account or Commodity Account. The Administrative Agent agrees with such Grantor that the Administrative Agent will not provide any instructions directing the disposition of Default exists at such time, Agent shall give notice funds from time to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made time credited to any Deposit Account, securities account Securities Account or otherwise received by Agent and whether on the Accounts Commodity Account or as proceeds of other Collateral withhold any withdrawal rights from such Grantor with respect to funds from time to time credited to any Deposit Account, Securities Account or otherwise, Commodity Account (in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address except as set forth in Section 11.3 belowArticle VII) unless, at the time thereof, an Activation Period is in effect.
Appears in 1 contract
Sources: Pledge and Security Agreement (Frank's International N.V.)
Control Agreements. (A) Each Note Subject to the limitations set forth in the Security Documents, on or before the Closing Date, each Loan Party shall cause obtain an authenticated Control Agreement, from each of its bank maintaining a Deposit Accounts Account or a Securities Account for such Loan Party (other than any Excluded Accounts); provided that with respect to Deposit Accounts and Securities Accounts maintained by Holdings, lockbox accounts Clover Leaf Seafood, or any other Loan Party organized outside of the United States or Canada with a bank located outside of the United States or Canada, any such Person shall only be required to use its commercially reasonable efforts to obtain Control Agreements with respect to such Deposit Accounts and Securities Accounts (and the use of such efforts shall not require such Person to incur costs that would otherwise be excessive in relation to the benefit to the Lenders of the control arrangements to be afforded thereby). Except as permitted by Section 5.20(b)(i), the Loan Parties shall not establish any Deposit Accounts or Securities Accounts after the Closing Date unless such Loan Party, concurrently with the establishment of any such Deposit Account or Securities Account (or such later date as may be agreed by the Agent in its Permitted Discretion) shall have obtained an authenticated Control Agreement from the bank maintaining such Deposit Account or the securities accounts intermediary maintaining such Securities Account and to have complied in full with the provisions of this Section 5.20(a) with respect to such Deposit Accounts or Securities Accounts; provided further that, with respect to any Deposit Accounts and Securities Accounts of any Loan Party acquired after the Closing Date, such Deposit Accounts and Securities Accounts of any such Loan Party shall not be required to be subject to a Control Agreement (i) until 30 days (or such later date as may be agreed by Agent in its Permitted Discretion) after such entity becomes a Loan Party, or (ii) if the security interest or hypothec of Agent in any such Deposit Account is otherwise perfected or rendered opposable by “springingcontrol” account control agreement (as defined in form and substance reasonably satisfactory to the UCC) by reason of such Deposit Account being maintained at the Agent or otherwise (a “Control Agreement”including another method under foreign or domestic Applicable Law). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless Each Canadian Guarantor with a Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Controlled Account subject to a Control Agreement and will instruct the applicable Controlled Account Bank each Note Party will immediately deposit in a Deposit Account subject day to a Control Agreement wire all payments received from account debtors or other payments constituting proceeds of Collateral received by such Note Party amounts in the identical form in which such payment was made, whether by cash or checkapplicable Controlled Account to Agent’s Account.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address set forth in Section 11.3 below.
Appears in 1 contract
Sources: Senior Secured Super Priority Debtor in Possession Credit Agreement
Control Agreements. Within forty-five (A45) Each Note Party days after the Effective Date, the applicable Obligors shall cause deliver to Collateral Agent one or more Control Agreements in respect of each Deposit Account and Securities Account maintained by such Obligors which are not, as of its the date of this Agreement, subject to the Custody Account Control Agreement or maintained with the Collateral Agent, together with a favorable opinion of counsel with respect to such Control Agreement; provided that the Obligors shall not be required to deliver any Control Agreement for any Excluded Account or any Deposit Accounts Account or Securities Account if the aggregate value of all such assets (other than Excluded Accounts), lockbox accounts and securities accounts to be that are not either maintained with the Collateral Agent or subject to a “springing” account control agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open ) would not be greater than $2,500,000 in the aggregate; provided further, for the avoidance of doubt, any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors Cash or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account financial assets that are not subject to a Control Agreement shall not be included in the Borrowing Base. So long as no Event of Default has occurred and is continuing or would result therefrom, each Note Party will immediately deposit Obligor may transfer, use and distribute its assets (and the proceeds thereof) that are in any Deposit Account or any Securities Account to the extent not prohibited by this Agreement or the other Loan Documents; provided, however, that if (a) the transfer of such assets (which are included in the Borrowing Base) is to a Deposit Account or Securities Account maintained with a Person other than Collateral Agent and (b) such assets are maintained in such Deposit Account or Securities Account by an Obligor, and (x) are not subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds in favor of Collateral received by Agent, (y) such Note Party Deposit Account or Securities Account is not an Excluded Account, and (z) after giving effect to the proposed transfer, the aggregate value of all such assets (that are not either maintained with Collateral Agent or subject to a Control Agreement) would be greater than $2,500,000 in the identical form in which aggregate, the Obligors shall not transfer such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise assets to such instructions is cured Deposit Account or waived, Securities Account until such time as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided or securities intermediary executes a Control Agreement in accordance favor of the Collateral Agent with this Section 4.9.
(D) Each Note Party hereby agrees respect to such Deposit Account or Securities Account. The Obligors shall provide prior written notice to Collateral Agent in the event that the aggregate value of all payments made to any assets held in such Deposit Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of Securities Accounts (other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s than Deposit Accounts or other Collateral, such Note Party Securities Accounts maintained with Collateral Agent or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account which are subject to a Control Agreement andin favor of the Collateral Agent) exceeds or would exceed $2,500,000 in the aggregate. No arrangement contemplated hereby or by any Control Agreement in respect of any Securities Accounts or other Investment Property shall be modified by any Obligor without the prior written consent of the Collateral Agent. Subject to Section 8.08, if requested by the Collateral Agent after may notify any bank or securities intermediary to liquidate the occurrence applicable Deposit Account or Securities Account or any related Investment Property constituting Collateral maintained or held in such Securities Accounts and during remit the continuance of an Event of Default, proceeds thereof to Agent at its address set forth in Section 11.3 belowthe Collateral Agent.
Appears in 1 contract
Sources: Guarantee and Security Agreement (Corporate Capital Trust, Inc.)
Control Agreements. Within sixty (A60) Each Note Party shall cause days of the Effective Date (or such later date as the Administrative Agent may agree to in its sole discretion), such Grantor will provide to the Administrative Agent, a Deposit Account Control Agreement, a Securities Account Control Agreement or a Commodity Account Control Agreement, as applicable, for each of its Deposit Accounts Account, Securities Account and Commodity Account (other than any Excluded Accounts), lockbox accounts and securities accounts to be subject to Deposit Account or De Minimis Account) existing on the Effective Date for which a “springing” account control agreement has not been delivered as of the Effective Date or evidence reasonably satisfactory to the Administrative Agent that such Deposit Account, Securities Account or Commodity Account has been closed and the remaining balance thereof, if any, has been transferred to an account held with JPMCB. For each Deposit Account, Securities Account or Commodity Account (other than any Excluded Deposit Account or De Minimis Account) opened after the Effective Date, such Grantor will provide a Deposit Account Control Agreement, a Securities Account Control Agreement or a Commodity Account Control Agreement, as applicable, substantially contemporaneously with the opening of such Deposit Account, Securities Account or Commodity Account. Pursuant to such control agreements, in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party the Administrative Agent, such Grantor will open any new cause the depository bank that maintains such Deposit AccountsAccount, lockbox account securities intermediary that maintains such Securities Account, or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors or other payment obligors of commodity intermediary that maintains such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waivedCommodity Account, as applicable, to agree to comply at any time with instructions from the Administrative Agent to such depository bank, securities intermediary or commodities intermediary directing the disposition of funds from time to time credited to such Deposit Account, Securities Account or Commodity Account, without further consent of such Grantor, and no take such other Event action as the Administrative Agent may approve in order to perfect the Administrative Agent’s security interest in such Deposit Account, Securities Account or Commodity Account. The Administrative Agent agrees with such Grantor that the Administrative Agent will not provide any instructions directing the disposition of Default exists at such time, Agent shall give notice funds from time to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made time credited to any Deposit Account, securities account Securities Account or otherwise received by Agent and whether on the Accounts Commodity Account or as proceeds of other Collateral withhold any withdrawal rights from such Grantor with respect to funds from time to time credited to any Deposit Account, Securities Account or otherwise, Commodity Account (in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address except as set forth in Section 11.3 belowArticle VII) unless, at the time thereof, an Activation Period is in effect.
Appears in 1 contract
Control Agreements. (Aa) Each Note Party On or prior to the Effective Date, UP Offshore Bahamas and Holdings shall cause have (i) executed and delivered (and shall have caused each of its their subsidiaries with a Deposit Accounts Account to have executed and delivered) to the Common Security Agent, New Transaction Security relating to each Deposit Account and control agreements or instruments of equivalent effect in each non-U.S. jurisdiction in form and substance satisfactory to the Administrative Agent (each, a "Control Agreement") which Control Agreements shall establish "control" (within the meaning of the UCC or other than Excluded Accounts), lockbox accounts relevant law) or perfection of the underlying security interest (in the case of each non-U.S. jurisdiction) and securities accounts to shall be subject to a “springing” account control agreement in form and substance reasonably satisfactory acceptable to the Agents and (ii) used its best efforts to cause each financial institution at which any Deposit Account is maintained to have executed and delivered such Control Agreements in respect of each Deposit Account (it being understood that if such financial institution shall not have executed and delivered such Control Agreement within 30 days after the Effective Date (which date may be extended by up to 30 days in the reasonable discretion of the Common Agent or such longer period as may be reasonably acceptable to the Required Lenders (as defined below)), the Offshore Entities will move the applicable Deposit Account from such financial institution to the Common Agent or another financial institution reasonably acceptable to the Common Agent which will execute a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereof.
(Bb) All account debtors or other payment obligors of such Note Party At all times on and after the Effective Date, each Deposit Account shall be directed (i) maintained in the name of an Obligor, (ii) located at one of the Agents, the Common Security Agent or at another financial institution reasonably acceptable to directly remit all payments on each Note Party’s Accounts directly the Administrative Agent, (iii) located in the United States, Brazil and any other jurisdiction reasonably acceptable to the Administrative Agent and (iv) subject to a Deposit Account first priority perfected lien in favor of the Common Security Agent and, other than as permitted under clause (a)(ii) above, be subject to a Control Agreement Agreement. To the extent that any security interests exist prior to the Effective Date in favor of any of the Agents under the Existing Facility Agreements or the Existing Guarantee Facility Agreement, each of the Parties agrees that such security interests shall be released and each Note Party will immediately deposit replaced with New Transaction Security containing a Security Interest in favor of the Common Security Agent.
(c) At all times on and after the Effective Date, the Deposit Accounts shall hold all cash or cash equivalents owned by the Obligors and all Earnings and proceeds of insurances (or any other amounts paid in respect of the Ships) shall be held in a Deposit Account subject to a Control Agreement all payments received from account debtors except as otherwise expressly permitted or other payments constituting proceeds of Collateral received by such Note Party provided for in the identical form in which such payment was made, whether by cash or checkthis Agreement.
(Cd) At all times on and after the Effective Date, all Deposit Accounts shall be denominated in reais or U.S. dollars, unless the Administrative Agent agrees otherwise in its reasonable discretion or as permitted below for Current Accounts. All Deposit Accounts other than the Current Accounts and the BR Free Cash Flow Concentration Account shall be required to be located in the United States and denominated in U.S. dollars. To the extent that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit AccountAccounts maintained by the Offshore Entities are denominated in any currency other than reais, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note PartyU.S. dollars, or any other currency reasonably agreed by the Administrative Agent (i) prior to the Effective Date, any remaining amounts in excess of their respective Affiliates, employees, agents the equivalent in such currencies of $1,000,000 in such accounts shall be transferred into a U.S. dollar-denominated Current Account or any other Persons acting for or in concert with the Minimum Liquidity Account (after conversion of such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating deposits to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, U.S. dollars at the FX Spot Rate) and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent (ii) after the occurrence and during Effective Date, the continuance average daily balance in all such accounts of an Event of Default, to Agent at its address set forth such other currencies shall not exceed $1,000,000 in Section 11.3 belowthe aggregate for all such Current Accounts.
Appears in 1 contract
Control Agreements. (a) Each of Holdings and Parent Borrower shall, and shall cause each other Credit Party to (i) enter into Control Agreements with respect to each deposit account, securities account and commodities account maintained by Holdings, Parent Borrower or any such Credit Party as of or after the Closing Date, (ii) deposit in a deposit account subject to a Control Agreement all cash received on each Business Day and (iii) not establish or maintain any deposit account, securities account or commodities account unless such deposit account, securities account or commodities account is subject to a Control Agreement as provided in Section 3.14, in each case, other than (A) Each Note Party any payroll account so long as such payroll account is a zero balance account, (B) any disbursement account so long as the cash and Cash Equivalents on deposit in such disbursement account shall cause each not exceed $100,000 at any time, (C) cash and Cash Equivalents on deposit in or credited to the balance of its Deposit Accounts (withholding tax, trust and other than Excluded Accounts), lockbox fiduciary accounts and securities (D) ▇▇▇▇▇ cash accounts not to have more than $50,000 on deposit in the aggregate at any time. Each such Control Agreement shall be subject to a “springing” account control agreement in form and substance reasonably satisfactory to the Decision Agent (a “Control Agreement”it being understood that the control agreements of the Credit Parties in place as of the Restatement Effective Date are in form and substance reasonably satisfactory). No Note Each Credit Party will open shall enter into and maintain with one or more banks and pursuant to agreements in form and substance reasonably satisfactory to the Decision Agent, lock box arrangements.
(b) Each of Holdings and Parent Borrower shall, and shall cause each Credit Party, to (i) direct each Account Debtor or other Person obligated to make a payment to any new Deposit Accounts, of them under any Account or General Intangible to make payment to the applicable Credit Party directly to a lockbox account or securities other deposit account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account subject to a Control Agreement and each Note Party will immediately (ii) deposit in a Deposit Account deposit account or securities account (as applicable) subject to a Control Agreement promptly (but in any event within three (3) Business Days) upon receipt all payments received from account debtors or other payments constituting proceeds Proceeds (as defined in the Code) of Collateral such Accounts and General Intangibles received by Holdings, Parent Borrower or any such Note Credit Party in the identical form in which such payment was made, whether by cash or checkfrom any other Person.
(Cc) Notwithstanding anything to the contrary in the foregoing clauses (a) or (b), it is understood and agreed that:
(i) Agent agrees that it shall only be permitted not deliver a notice of control or other similar notice to give instructions any depository institution, securities intermediary or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waivedcommodities intermediary, as applicable, and no other pursuant to any Control Agreement unless (A) an Event of Default exists shall be continuing or (B) Excess Availability is less than (x) for five (5) consecutive Business Days the greater of (i) 12.5% of the aggregate Revolving Loan Commitments then in effect and (ii) $35.0 million or (y) at such time, Agent shall give notice to any time 10% of the applicable bank canceling instructions provided Revolving Loan Commitments of all Lenders then in accordance with this Section 4.9.effect; and
(Dii) Each Note Party hereby agrees that if an Event of Default shall be continuing or Excess Availability is less than (x) for five (5) consecutive Business Days the greater of (A) 12.5% of the aggregate Revolving Loan Commitments then in effect and (B) $35.0 million or (y) at any time 10% of the Revolving Loan Commitments of all payments made to any Deposit AccountLenders then in effect, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwiseand, in each case, a control notice or similar notice has been given by Agent in accordance with the applicable Control Agreement and the immediately preceding clause (i), amounts deposited in or credited to deposit accounts, securities accounts or commodities accounts subject to Control Agreements or credited to the extent constituting Collateral, lock-box account will be subject transferred on a daily basis to the Lien of Agent, for Concentration Account and shall not be available to the benefit of itself and the other Secured Parties. If any Note applicable Credit Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address set forth in Section 11.3 below.
Appears in 1 contract
Control Agreements. (ASubject to Section 8.17(b) Each Note Party shall cause of the Credit Agreement, with respect to each of its Deposit Accounts Account, Securities Account and Commodity Account, in each case, constituting Collateral (other than De Minimis Accounts and the Excluded Accounts), lockbox accounts that the Grantor at any time maintains, the Grantor will, at the time of the opening of such Deposit Account, Securities Account or Commodity Account (other than De Minimis Accounts and securities accounts the Excluded Accounts) or at the time such Deposit Account, Securities Account or Commodity Account ceases to be subject a De Minimis Account or an Excluded Account, pursuant to a “springing” account control agreement Control Agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open any new the Administrative Agent, cause the depository bank that maintains such Deposit AccountsAccount, lockbox account securities intermediary that maintains such Securities Account, or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors or other payment obligors of commodities intermediary that maintains such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waivedCommodity Account, as applicable, and no to agree to comply at any time with instructions from the Administrative Agent to such depository bank, securities intermediary or commodities intermediary directing the disposition of funds from time to time credited to such Deposit Account, Securities Account or Commodity Account, without further consent of the Grantor, or take such other action as the Administrative Agent may reasonably request in order to perfect the Administrative Agent’s security interest in such Deposit Account, Securities Account or Commodity Account. Notwithstanding anything to the contrary in this Security Agreement, the Credit Agreement or any Control Agreement, unless an Event of Default exists at such timehas occurred and is continuing, the Administrative Agent agrees with the Grantor that the Administrative Agent shall not give notice any instructions, directions or Entitlement Orders, as applicable, directing the disposition of funds, Financial Assets or Commodity Contracts, as applicable, from time to the applicable bank canceling instructions provided time credited to or carried in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account Securities Account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwiseCommodity Account subject, in each case, to a Control Agreement (other than a notice by the extent constituting Collateral, will Administrative Agent that its activation of sole control has ceased and that the Grantor shall be subject entitled once again to control and direct the disposition of funds in such account until future notice by the Administrative Agent pursuant to the Lien provision of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for AgentControl Agreement), and immediately upon receipt thereofshall not withhold any withdrawal rights or dealing rights from the Grantor with respect to any funds, shall remit the same Financial Assets or cause the same Commodity Contracts, as applicable, from time to be remittedtime credited to or carried in any Deposit Account, Securities Account or Commodity Account subject, in kindeach case, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address set forth in Section 11.3 belowAgreement.
Appears in 1 contract
Sources: Credit Agreement (Energen Corp)
Control Agreements. (Aa) Each Note Party shall cause each of its Deposit Accounts Debtor represents, covenants and warrants that such Debtor does not have or maintain any deposit accounts (other than Excluded Deposit Accounts) as the date hereof except as set forth in Schedule III-1 hereto. The Debtors shall not, directly or indirectly, after the date hereof, establish or maintain any deposit account unless each of the following conditions is satisfied: (i) Agent shall have received not less than five (5) Business Days’ prior written notice of the intention of any Debtor to open or establish such account which notice shall specify in reasonable detail and specificity acceptable to Agent the name of the account, the owner of the account, the name and address of the bank at which such account is to be opened or established, the individual at such bank with whom such Debtor is dealing and the purpose of the account, (ii) the bank where such account is opened or maintained shall be acceptable to Agent, and (iii) in the case of any deposit account that is not an Excluded Deposit Account, on or before the opening of such deposit account, such Debtor shall deliver to Agent a Deposit Account Control Agreement with respect to such deposit account duly authorized, executed and delivered by such Debtor and the bank at which such deposit account is opened and maintained. No later than forty-five (45) days after the date hereof (or such later time as the Agent may agree in its sole discretion), lockbox accounts and securities accounts each Debtor shall cause each deposit account (other than Excluded Deposit Accounts) held or maintained by such Debtor on the date hereof to be subject to a “springing” account control agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless a Account Control Agreement duly executed by such Debtor and the bank at which such deposit account is entered into concurrently with the opening thereofmaintained and delivered to Agent.
(Bb) All account debtors income earned or other payment obligors proceeds received by any Debtor and any direct or indirect Domestic Subsidiary thereof during the term of such Note Party this Agreement shall be directed to directly remit all payments on each Note Party’s Accounts directly to deposited promptly upon (and in any event within one Business Day of) receipt thereof by such Debtor in a Deposit Account deposit account that is subject to a Control Agreement and each Note Party will immediately deposit in a fully executed Deposit Account subject to a Control Agreement all payments received from account debtors Agreement, except for such income earned or other payments constituting proceeds of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions be deposited in an Excluded Deposit Account or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided Frost Bank Excluded Account in accordance with this Section 4.9.
(D) Agreement . Each Note Party hereby agrees Debtor shall take all steps to ensure that all payments made of its account debtors forward all items of payment to a deposit account that is subject to a fully executed Deposit Account Control Agreement, and in no event shall any Debtor direct any account debtor to forward any item of payment to any account other than a deposit account that is subject to a fully executed Deposit Account Control Agreement. As used herein, the term “Excluded Deposit Account” means any deposit account established and used exclusively for payroll, securities account payroll taxes and similar employment taxes or otherwise received by Agent other employee wage and whether on benefit payments in the Accounts ordinary course of business to or as proceeds of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself any Debtor’s employees and identified to Agent as being an Excluded Deposit Account. Each Debtor represents and warrants that as of the date hereof, all of the Excluded Deposit Accounts maintained by any Debtor are as set forth on Schedule III-2 hereto. Each Debtor covenants and agrees that during the term of this Agreement (i) each Excluded Deposit Account shall at all times be used exclusively for payroll, payroll taxes and similar employment taxes or other Secured Parties. If employee wage and benefit payments in the ordinary course of business to or for the benefit of any Note PartyDebtor’s employees, and (ii) such Debtor will not make or cause any of their respective Affiliatesits direct or indirect subsidiaries to make any deposits in any Excluded Deposit Account other than those necessary to fund payroll, employees, agents payroll taxes and similar employment taxes or any other Persons acting employee wage and benefit payments in the ordinary course of business to or for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds the benefit of any Note PartyDebtor’s Accounts or other Collateralemployees. As used herein, such Note Party or such Person shall hold such instrument or funds the term “Frost Bank Excluded Account” means the deposit account maintained by Nauticus Sub with Frost Bank (Acct No. 00001007) with a CD securing obligations under corporate credit cards and listed in trust for Agent, Schedule III-3 hereto. Each Debtor covenants and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and agrees that during the continuance term of an Event this Agreement the aggregate amount of Default, to Agent deposits contained in the Frost Bank Excluded Account shall not exceed $750,000 at its address set forth in Section 11.3 belowany time.
Appears in 1 contract
Sources: Pledge and Security Agreement (Nauticus Robotics, Inc.)
Control Agreements. Solely during a Suspension Period or Covenant Restriction Period, (i) from and after the date that is sixty (60) days following the Second Amendment Effective Date (or such later date as may be agreed by the Administrative Agent in its reasonable discretion), for each Deposit Account and Securities Account (in each case, other than an Excluded Account) of any Loan Party existing on the Second Amendment Effective Date and (ii) within sixty (60) days after (or by such later time as the Administrative Agent may agree to in its reasonable discretion) (x) the opening of any Deposit Account or Securities Account (in each case, other than an Excluded Account) by any Loan Party after the Second Amendment Effective Date or (y) any Excluded Account of any Loan Party ceases to be an Excluded Account after the Second Amendment Effective Date, in each case, such Loan Party will (A) Each Note Party shall cause each of its Deposit Accounts (other than Excluded Accounts), lockbox accounts and securities accounts provide a Control Agreement to be subject to a “springing” account control agreement the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent (a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors or take such other payment obligors of such Note Party action as shall be directed necessary to directly remit all payments create and perfect a valid and enforceable first priority Lien on each Note Party’s Accounts directly to a such Deposit Account subject to a Control Agreement and each Note Party will immediately deposit and/or Security Account in a Deposit Account subject manner effective to create such a Control Agreement all payments received from account debtors security interest and on terms reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing or other payments constituting proceeds the terms of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of or any Loan Document, unless an Event of Default. In additionDefault is continuing, if the Event Administrative Agent will not deliver a notice of Default giving rise to such instructions is cured exclusive control or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice entitlement orders to the applicable bank canceling instructions provided or securities intermediary or otherwise enforce the terms of any Control Agreement in accordance with this Section 4.9.
(D) Each Note order to take possession of, or prevent or limit the ability of any Loan Party hereby agrees that all payments made to direct the disposition of, the funds and other assets held in any Deposit Account or Securities Account. Upon any exit from a Suspension Period or Covenant Restriction Period, securities account or otherwise received by the Administrative Agent agrees, and whether on the Accounts or as proceeds of other Collateral or otherwise, in each caseLenders hereby authorize the Administrative Agent, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or promptly terminate all Control Agreements in concert with existence at such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address set forth in Section 11.3 belowtime.
Appears in 1 contract
Control Agreements. For each Deposit Account, Securities Account and Commodity Account (Aother than De Minimis Accounts) Each Note Party that such Grantor at any time maintains, such Grantor will, substantially contemporaneously with the opening of such Deposit Account, Securities Account or Commodity Account (other than De Minimis Accounts), pursuant to a Control Agreement in form and substance satisfactory to the Collateral Agent, cause the depository bank that maintains such Deposit Account, securities intermediary that maintains such Securities Account, or commodities intermediary that maintains such Commodity Account, as applicable, to agree to comply at any time with instructions from the Collateral Agent (or such other party as provided for in the Intercreditor Agreement) to such depository bank, securities intermediary or commodities intermediary directing the disposition of funds from time to time credited to such Deposit Account, Securities Account or Commodity Account, without further consent of such Grantor, or take such other action as the Collateral Agent (or such other party) may approve in order to perfect the Collateral Agent’s security interest in such Deposit Account, Securities Account or Commodity Account. Notwithstanding the foregoing or the terms of any Control Agreement, unless an Event of Default is continuing the Collateral Agent will not enforce the terms of any Control Agreement in order to take possession of, or prevent or limit the ability of any Grantor to direct the disposition of, the funds and other assets held in any Deposit Account, Securities Account or Commodity Account. Notwithstanding the foregoing, provided that the relevant Grantor shall cause each have used its commercially reasonable efforts for a period of its at least 90 days following the applicable date to enter into control agreements in favor of the Collateral Agent in respect to any such Deposit Accounts, Securities Accounts and Commodities Accounts (other than Excluded De Minimis Accounts), lockbox accounts and securities accounts such Grantor shall be relieved of any further obligation to be deliver control agreements so long as the Priority Lien Representative or agents or bailees of the Priority Lien Representative maintains a perfected second priority lien (subject to a “springing” account control agreement in form and substance reasonably satisfactory to Agent (a “Control Intercreditor Agreement”). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself the Parity Lien Secured Parties through control of such Deposit Accounts, Securities Accounts and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Commodities Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, pursuant to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address set forth in Section 11.3 belowcontrol agreement.
Appears in 1 contract
Sources: Second Lien Pledge and Security Agreement (Centennial Resource Development, Inc.)
Control Agreements. With respect to any Mortgage Asset or collateral for a Mortgage Asset that is an uncertificated security (A) Each Note Party shall cause each of its Deposit Accounts (other than Excluded Accountsas defined in the UCC), lockbox accounts and securities accounts to be subject to entitlement (as defined in the UCC) or is held in a “springing” account control agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless as defined in the UCC), the Borrower shall provide to the Administrative Agent a Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors or other payment obligors of such Note Party control agreement, which shall be directed acceptable to directly remit all payments on each Note Party’s Accounts directly the Administrative Agent in its discretion and shall be delivered to a Deposit Account subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors the Custodian under the Custodial Agreement, executed by the issuer of the Mortgage Asset or other payments constituting proceeds of Collateral received by such Note Party the collateral for the Mortgage Asset or the related securities intermediary (as defined in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waivedUCC), as applicable, and no other Event granting control (as defined in the UCC) of Default exists at such time, Agent shall give notice Mortgage Asset or collateral for such Mortgage Asset to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Administrative Agent and whether on the Accounts or as proceeds of other Collateral or otherwiseproviding that, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, the Administrative agent shall be entitled to notify the issuer or securities intermediary, as applicable, that such issuer or securities intermediary shall comply exclusively with the instructions or entitlement orders (as defined in the UCC), as applicable, of the Administrative Agent at its address without the consent of the Borrower or any other Person and no longer follow the instructions or entitlement orders, as applicable, of the Borrower or any other Person (other than the Administrative Agent). All of the Borrowers’ right, title and interest in the Mortgage Assets that constitute CMBS Securities shall be pledged to the Administrative Agent on the applicable Borrowing Date. The Borrowers shall deliver to the Custodian on behalf of the Administrative Agent as agent for the Lenders a complete set forth of all transfer documents to be completed by the Administrative Agent as agent for the Lenders and executed copies of any transfer documents to be completed by the applicable Borrower, in Section 11.3 beloweither case in blank, but in form sufficient to allow transfer and registration of such Mortgage Assets to the Administrative Agent as agent for the Lenders no later than the proposed Borrowing Date for the relevant Mortgage Asset, and such CMBS Securities shall be medallion guaranteed. All transfers of certificated securities from the Borrowers to the Administrative Agent as agent for the Lenders shall be effected by physical delivery to the Custodian of the Mortgage Assets (duly endorsed by the applicable Borrower, in blank), together with a stock power executed by the applicable Borrower, in blank. With respect to Mortgage Assets that shall be delivered through the DTC or the National Book Entry System of the Federal Reserve or any similar firm or agency, as applicable, in book—entry form and credited to or otherwise held in an account, the Borrowers shall take such actions necessary to provide instruction to the relevant financial institution, clearing corporation, securities intermediary or other entity to effect and perfect a legally valid delivery of the relevant interest granted herein to the Administrative Agent as agent for the Lenders hereunder to be held in the Securities Account. Mortgage Assets delivered in book—entry form shall be under the custody of and held in the name of the Administrative Agent as agent for the Lenders in the Securities Account.
Appears in 1 contract
Sources: Credit Agreement (Northstar Realty)
Control Agreements. (Ai) Each Note Party Grantor shall cause obtain and keep effective a Control Agreement from each bank maintaining a Deposit Account for such Grantor (other than Excluded Assets) including such bank and Deposit Accounts set forth on Schedule 6(k);
(ii) Each Grantor shall obtain and keep effective a Control Agreement, from each issuer of its uncertificated securities, securities intermediary, or commodities intermediary issuing or holding any financial assets or commodities (other than Excluded Assets) to or for any Grantor;
(iii) Except to the extent otherwise excused by the First Lien Documents, each Grantor shall obtain and keep effective a Control Agreement with respect to all of such Grantor's investment property other than Excluded Assets;
(iv) Subject to the Intercreditor Agreement, each such Control Agreement shall provide, among other things, that upon notice from Control Agent (a “Control Notice”), the bank, intermediary or other Person described in clauses (i)-(iii) above will comply with any instructions originated by Control Agent directing the disposition of funds in the applicable Account without further consent by the applicable Grantor. Agent agrees not to issue a Control Notice unless a Triggering Event has occurred and is continuing at the time such Control Notice is issued. Agent agrees to rescind a Control Notice (the “Rescission”) if : (1) the Triggering Event has been cured or waived in writing in accordance with the terms of the Credit Agreement, and (2) no additional Triggering Event has occurred and is continuing prior to the date of the Rescission or is reasonably expected to occur on or immediately after the date of the Rescission;
(v) So long as no Event of Default has occurred and is continuing and except as may be otherwise provided in the Credit Agreement, Grantors may close accounts or replace any bank, intermediary or other Person described in clauses (i)-(iii) above with the prior written consent of Agent and Grantors may thereafter amend Schedule 6(k); provided however, in respect of such Deposit Accounts (other than Excluded AccountsAssets), lockbox accounts simultaneously with or as promptly as practicable after such closure or replacement, as requested by Agent, the applicable Grantor and securities accounts such bank, intermediary or other Person shall have executed and delivered to be subject to the Agent a “springing” account control agreement Control Agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereofAgent.
(B) All account debtors or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address set forth in Section 11.3 below.
Appears in 1 contract
Sources: Security Agreement (Platinum Energy Solutions, Inc.)
Control Agreements. (A) Each Note Party shall cause each Parent and the Borrowers will not permit the aggregate balance of its Deposit Accounts cash and Permitted Investments of the Loan Parties in any account (other than (i) each deposit account, the funds in which are used, in the ordinary course of business, solely for the payment of salaries and wages, workers’ compensation, pension benefits and similar expenses, (ii) each deposit account used, in the ordinary course of business, solely for daily accounts payable and that has an ending daily balance of zero, and (iii) each BofA Excluded AccountsAccount (as defined below), lockbox accounts and securities accounts to be ) not subject to a “springing” account Deposit Account Control Agreements or other appropriate control agreement agreements in favor of the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent (a “Control Agreement”)to exceed an amount to be specified by the Lenders in their discretion. No Note Party will open Notwithstanding anything to the contrary in any new Loan Document, Parent and the Borrowers shall not be required to maintain any Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless a Account Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors or other payment obligors of such Note Party shall be directed control agreement with respect to directly remit all payments on each Note Party’s Accounts directly to a Deposit any BofA Excluded Account subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds of Collateral received by such Note Party in unless the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Administrative Agent shall give have delivered written notice to the applicable bank canceling instructions provided Borrowers after the Amendment Effective Date for Amendment No. 2 to this Agreement stating that such agreement shall be required following a date specified in accordance such notice (after which date clause (iii) in the immediately preceding sentence shall be deemed deleted). “BofA Excluded Account” means (A) each deposit account maintained with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit AccountBank of America, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note PartyN.A., or any of their respective Affiliates, employees, agents or any other Persons acting for or its Affiliates in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds respect of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds which there is not in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to effect a Deposit Account subject to a Control Agreement and, if requested by Agent as of the Amendment Effective Date under Amendment No. 2 to this Agreement and (B) at all times on and after the occurrence date on which the Deposit Account Control Agreement in effect with respect thereto on the Amendment Effective Date under Amendment No. 2 to this Agreement shall cease to be effective, the concentration account maintained in Canada with Bank of America, N.A., or one of its Affiliates (the “Canadian Account”). The Borrowers shall at all times act to minimize the amount of cash held in BofA Excluded Accounts (and during shall in any event ensure that the continuance aggregate amount contained in (1) the BofA Excluded Accounts other than the Canadian Account, shall not at any time exceed an amount to be specified by the Lenders in their discretion for all such accounts taken together, and (2) the Canadian Account at any time that it is a BofA Excluded Account, shall not at any time exceed an amount to be specified by the Lenders in their discretion) and shall follow such procedures as the Administrative Agent or the Lenders may from time to time specify in connection therewith. (aa) Paragraph (d) of an Event of DefaultArticle VII shall be amended by inserting at the end thereof the phrase: “or the Borrowers shall fail to observe or perform any covenant, to Agent at its address set forth condition or agreement contained in Section 11.3 below5.01(f) or 5.09(b) and such failure shall continue unremedied for a period of 2 Business Days”.
Appears in 1 contract
Control Agreements. (A) Each Note For each Deposit Account or Securities Account that the Borrower or any Credit Party shall cause each maintains as of its Deposit Accounts the Effective Date (other than Excluded Accounts) the Borrower and other Credit Party will, by no later than 30 days after the Effective Date (or such longer period agreed to by the Administrative Agent), lockbox accounts and securities accounts either (a) cause such account to be subject to a “springing” deposit account control agreement or securities account control agreement, as applicable, in form and substance reasonably satisfactory to the Administrative Agent naming the Administrative Agent as the secured party thereunder for the benefit of the Lenders, or (b) close such account and transfer any funds therein to an account that otherwise meets the requirements of this Section 9.17. From and after the Effective Date, neither the Borrower nor any other Credit Party shall deposit any funds or securities or other assets into any Deposit Account or Securities Account (other than Excluded Accounts) unless such Deposit Account or Securities Account is subject to a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox deposit account control agreement or securities account control agreement, as applicable, in form and substance satisfactory to the Administrative Agent and naming the Administrative Agent as the secured party thereunder for the benefit of the Lenders; provided that, the Borrower shall have thirty (other than “Excluded Accounts”30) unless days (or such longer period as Administrative Agent may determine in its sole discretion) following the Amendment No. 1 Effective Date to execute any such account control agreement establishing a Control Agreement is entered into concurrently perfected Lien on such accounts. Each deposit control agreement will provide that the depositary bank will comply with instructions originated by the opening thereof.
(B) All account debtors or other payment obligors Administrative Agent directing dispositions of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a funds in the Deposit Account subject to a Control Agreement and each Note Party without further consent by the applicable Credit Party. Each securities account control agreement will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds of Collateral received provide that the securities intermediary will comply with entitlement orders originated by such Note Party in the identical form in which such payment was made, whether Administrative Agent without further consent by cash or check.
(C) the applicable Credit Party. The Administrative Agent agrees that it shall only be permitted to give will not issue any such instructions or directions entitlement orders or otherwise exercise any control right granted under any Control Agreement after the occurrence and during the continuance of such deposit account control agreement or securities account control agreement unless (a) an Event of Default. In additionDefault has occurred or (b) the Notes and the Loans then outstanding have become due and payable in whole (and not merely in part), if whether at the Event of Default giving rise to such instructions is cured or waiveddue date thereof, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral acceleration or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address set forth in Section 11.3 below.
Appears in 1 contract
Control Agreements. (A) Each Note For each deposit or securities account that the Parent Guarantor, the Borrower or any other Loan Party shall cause each maintains as of its Deposit Accounts the Third Amendment Effective Date (other than Excluded Accountspayroll, withholding tax, escrow, trust fund and other fiduciary deposit accounts), lockbox accounts and securities accounts the Parent Guarantor will, by no later than 60 days after the Third Amendment Effective Date, either (a) cause such account to be subject to a “springing” deposit account control agreement or securities account control agreement, as applicable, in form and substance reasonably satisfactory to the Administrative Agent naming the Administrative Agent as the secured party thereunder for the benefit of the Other Secured Persons, or (a “Control Agreement”)b) close such account and transfer any funds therein to an account that otherwise meets the requirements of this Section 9.20. No Note From and after the Third Amendment Effective Date, neither the Parent Guarantor, the Borrower nor any other Loan Party will open shall open, any new Deposit Accounts, lockbox account deposit or securities account (other than “Excluded Accounts”payroll, withholding tax, escrow, trust fund and other fiduciary deposit accounts) unless a Control Agreement is entered into concurrently with the opening thereof.
(B) All such deposit or securities account debtors is, or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account within 30 days after being opened becomes, subject to a Control Agreement deposit account control agreement or securities account control agreement, as applicable, in form and each Note Party substance reasonably satisfactory to the Administrative Agent naming the Administrative Agent as the secured party thereunder for the benefit of the Other Secured Persons. Each deposit account control agreement will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds provide that the depositary bank will comply with instructions originated by the Administrative Agent directing dispositions of Collateral received by such Note Party funds in the identical form in which such payment was made, whether deposit account without further consent by cash or check.
(C) the applicable Loan Party. Each securities account control agreement will provide that the securities intermediary will comply with entitlement orders originated by the Administrative Agent without further consent by the applicable Loan Party. The Administrative Agent agrees that it shall only be permitted to give not issue any such instructions or directions entitlement orders or otherwise exercise any control right granted under any Control Agreement after the occurrence and during the continuance of such deposit account control agreement or securities account control agreement unless (a) an Event of Default. In addition, if Default of the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address type set forth in Sections 10.01(a), (b), (f), (g), (h), (i), or (j) has occurred or (b) the Notes and the Loans then outstanding have become due and payable in whole (and not merely in part), whether at the due date thereof, by acceleration or otherwise.”
2.9 Amendment to Article XII. Article XII is hereby amended by adding the following Section 11.3 below.12.18:
Appears in 1 contract
Control Agreements. Within sixty (A60) Each Note Party shall cause each of days after the Effective Date (or such longer time period as agreed to by the Collateral Agent in its Deposit Accounts (other than Excluded Accountssole discretion), lockbox accounts the applicable Obligors shall deliver to the Collateral Agent one or more Control Agreements in respect of each Deposit Account and securities accounts Securities Account maintained by such Obligors which are not, as of the date of this Agreement, maintained with the Collateral Agent, together with a favorable opinion of counsel with respect to such Control Agreement; provided that the Obligors shall not be required to deliver any Control Agreement for any Excluded Account or any Deposit Account or Securities Account if the aggregate value of all such assets (that are not either maintained with the Collateral Agent or subject to a “springing” account control agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open ) would not be greater than $2,500,000 in the aggregate; provided further, for the avoidance of doubt, any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors Cash or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account financial assets that are not subject to a Control Agreement shall not be included in the Borrowing Base. So long as no Event of Default has occurred and is continuing or would result therefrom, each Note Party will immediately deposit Obligor may transfer, use and distribute its assets (and the proceeds thereof) that are in any Deposit Account or any Securities Account to the extent not prohibited by this Agreement or the other Loan Documents; provided, however, that if (a) the transfer of such assets is to a Deposit Account or Securities Account maintained with a Person other than the Collateral Agent and (b) such assets are maintained in such Deposit Account or Securities Account by an Obligor, and (x) are not subject to a Control Agreement in favor of the Collateral Agent, (y) such Deposit Account or Securities Account is not an Excluded Account, and (z) after giving effect to the proposed transfer, the aggregate value of all payments received from account debtors such assets (that are not either maintained with the Collateral Agent or other payments constituting proceeds of Collateral received by such Note Party subject to a Control Agreement) would be greater than $2,500,000 in the identical form in which aggregate, the Obligors shall not transfer such payment was made, whether by cash assets to such Deposit Account or check.
(C) Agent agrees that it shall only be permitted to give instructions Securities Account until such time as the applicable bank or directions under any Securities Intermediary executes a Control Agreement after in favor of the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise Collateral Agent with respect to such instructions is cured Deposit Account or waived, as applicable, and no other Event of Default exists at such time, Agent Securities Account. The Obligors shall give provide prior written notice to the applicable bank canceling instructions provided Collateral Agent in accordance with this Section 4.9.
(D) Each Note Party hereby agrees the event that the aggregate value of all payments made to any assets held in such Deposit Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of Securities Accounts (other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s than Deposit Accounts or other Collateral, such Note Party Securities Accounts maintained with the Collateral Agent or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account which are subject to a Control Agreement andin favor of the Collateral Agent) exceeds or would exceed $2,500,000 in the aggregate. No arrangement contemplated hereby or by any Control Agreement in respect of any Securities Account or other Investment Property shall be modified by any Obligor without the prior written consent of the Collateral Agent. Subject to Section 8.08, if requested by the Collateral Agent after may notify any bank or Securities Intermediary to liquidate the occurrence applicable Deposit Account or Securities Account or any related Investment Property constituting Collateral maintained or held in such Securities Accounts and during remit the continuance of an Event of Default, proceeds thereof to Agent at its address set forth in Section 11.3 belowthe Collateral Agent.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Franklin BSP Capital Corp)
Control Agreements. (Ai) Each Note Party Grantor shall cause obtain and keep effective a Control Agreement from each bank maintaining a Deposit Account for such Grantor (other than Excluded Assets) including such bank and Deposit Accounts set forth on Schedule 6(k);
(ii) Each Grantor shall obtain and keep effective a Control Agreement, from each issuer of its uncertificated securities, securities intermediary, or commodities intermediary issuing or holding any financial assets or commodities (other than Excluded Assets) to or for any Grantor;
(iii) Except to the extent otherwise excused by the First Lien Documents, each Grantor shall obtain and keep effective a Control Agreement with respect to all of such Grantor’s investment property other than Excluded Assets;
(iv) Subject to the Intercreditor Agreement, each such Control Agreement shall provide, among other things, that upon notice from Control Agent (a “Control Notice”), the bank, intermediary or other Person described in clauses (i)-(iii) above will comply with any instructions originated by Control Agent directing the disposition of funds in the applicable Account without further consent by the applicable Grantor. Lender agrees not to issue a Control Notice unless a Triggering Event has occurred and is continuing at the time such Control Notice is issued. Lender agrees to rescind a Control Notice (the “Rescission”) if : (1) the Triggering Event has been cured or waived in writing in accordance with the terms of the Credit Agreement, and (2) no additional Triggering Event has occurred and is continuing prior to the date of the Rescission or is reasonably expected to occur on or immediately after the date of the Rescission;
(v) So long as no Event of Default has occurred and is continuing and except as may be otherwise provided in the Credit Agreement, Grantors may close accounts or replace any bank, intermediary or other Person described in clauses (i)-(iii) above and Grantors may amend Schedule 6(k); provided however, in respect of such Deposit Accounts (other than Excluded AccountsAssets), lockbox accounts as promptly as practicable after such closure or replacement, the applicable Grantor and securities accounts such bank, intermediary or other Person shall have executed and delivered to be subject to the Lender a “springing” account control agreement Control Agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently with the opening thereofLender.
(B) All account debtors or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address set forth in Section 11.3 below.
Appears in 1 contract
Sources: Security Agreement (Platinum Energy Solutions, Inc.)
Control Agreements. (A) Each Note For each deposit or securities account that the Parent Guarantor, the Borrower or any other Loan Party shall cause each maintains as of its Deposit Accounts the Third Amendment Effective Date (other than Excluded Accountspayroll, withholding tax, escrow, trust fund and other fiduciary deposit accounts), lockbox accounts and securities accounts the Parent Guarantor will, by no later than 60 days after the Third Amendment Effective Date, either (a) cause such account to be subject to a “springing” deposit account control agreement or securities account control agreement, as applicable, in form and substance reasonably satisfactory to the Administrative Agent naming the Administrative Agent as the secured party thereunder for the benefit of the Other Secured Persons, or (a “Control Agreement”)b) close such account and transfer any funds therein to an account that otherwise meets the requirements of this Section 9.20. No Note From and after the Third Amendment Effective Date, neither the Parent Guarantor, the Borrower nor any other Loan Party will open shall open, any new Deposit Accounts, lockbox account deposit or securities account (other than “Excluded Accounts”payroll, withholding tax, escrow, trust fund and other fiduciary deposit accounts) unless a Control Agreement is entered into concurrently with the opening thereof.
(B) All such deposit or securities account debtors is, or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account within 30 days after being opened becomes, subject to a Control Agreement deposit account control agreement or securities account control agreement, as applicable, in form and substance reasonably satisfactory to the Administrative Agent naming the Administrative Agent as the secured party thereunder for the benefit of the Other Secured Persons. Notwithstanding the foregoing, for each Note Party will immediately deposit or securities account that becomes a deposit or securities account of a Restricted Subsidiary as a result of the Energen Transaction or a Permitted Acquisition (in a Deposit Account each case, other than payroll, withholding tax, escrow, trust fund and other fiduciary deposit accounts), the Parent Guarantor will, by no later than 60 days after the date of the Energen Merger or such Permitted Acquisition, either (a) cause such account to be subject to a Control Agreement all payments received from deposit account debtors control agreement or other payments constituting proceeds securities account control agreement, as applicable, in form and substance reasonably satisfactory to the Administrative Agent naming the Administrative Agent as the secured party thereunder for the benefit of Collateral received the Other Secured Persons, or (b) close such account and transfer any funds therein to an account that otherwise meets the requirements of this Section 9.20. Each deposit account control agreement will provide that the depositary bank will comply with instructions originated by such Note Party the Administrative Agent directing dispositions of funds in the identical form in which such payment was made, whether deposit account without further consent by cash or check.
(C) the applicable Loan Party. Each securities account control agreement will provide that the securities intermediary will comply with entitlement orders originated by the Administrative Agent without further consent by the applicable Loan Party. The Administrative Agent agrees that it shall only be permitted to give not issue any such instructions or directions entitlement orders or otherwise exercise any control right granted under any Control Agreement after the occurrence and during the continuance of such deposit account control agreement or securities account control agreement unless (a) an Event of Default. In addition, if Default of the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address type set forth in Sections 10.01(a), (b), (f), (g), (h), (i), or (j) has occurred or (b) the Notes and the Loans then outstanding have become due and payable in whole (and not merely in part), whether at the due date thereof, by acceleration or otherwise.171 171 Section 11.3 below9.20 added by Third Amendment.
Appears in 1 contract
Control Agreements. With respect to any Mortgage Asset or collateral for a Mortgage Asset that is an uncertificated security (A) Each Note Party shall cause each of its Deposit Accounts (other than Excluded Accountsas defined in the UCC), lockbox accounts and securities accounts to be subject to entitlement (as defined in the UCC) or is held in a “springing” account control agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless as defined in the UCC), the Borrower shall provide to the Administrative Agent a Control Agreement is entered into concurrently with the opening thereof.
(B) All account debtors or other payment obligors of such Note Party control agreement, which shall be directed acceptable to directly remit all payments on each Note Party’s Accounts directly the Administrative Agent in its discretion and shall be delivered to a Deposit Account subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors the Custodian under the Custodial Agreement, executed by the issuer of the Mortgage Asset or other payments constituting proceeds of Collateral received by such Note Party the collateral for the Mortgage Asset or the related securities intermediary (as defined in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waivedUCC), as applicable, and no other Event granting control (as defined in the UCC) of Default exists at such time, Agent shall give notice Mortgage Asset or collateral for such Mortgage Asset to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Administrative Agent and whether on the Accounts or as proceeds of other Collateral or otherwiseproviding that, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, the Administrative agent shall be entitled to notify the issuer or securities intermediary, as applicable, that such issuer or securities intermediary shall comply exclusively with the instructions or entitlement orders (as defined in the UCC), as applicable, of the Administrative Agent at its address without the consent of the Borrower or any other Person and no longer follow the instructions or entitlement orders, as applicable, of the Borrower or any other Person (other than the Administrative Agent). All of the Borrowers’ right, title and interest in the Mortgage Assets that constitute CMBS Securities shall be pledged to the Administrative Agent on the applicable Borrowing Date. The Borrowers shall deliver to the Custodian on behalf of the Administrative Agent as agent for the Lenders a complete set forth of all transfer documents to be completed by the Administrative Agent as agent for the Lenders and executed copies of any transfer documents to be completed by the applicable Borrower, in Section 11.3 beloweither case in blank, but in form sufficient to allow transfer and registration of such Mortgage Assets to the Administrative Agent as agent for the Lenders no later than the proposed Borrowing Date for the relevant Mortgage Asset, and such CMBS Securities shall be medallion guaranteed. All transfers of certificated securities from the Borrowers to the Administrative Agent as agent for the Lenders shall be effected by physical delivery to the Custodian of the Mortgage Assets (duly endorsed by the applicable Borrower, in blank), together with a stock power executed by the applicable Borrower, in blank. With respect to Mortgage Assets that shall be delivered through the DTC or the National Book Entry System of the Federal Reserve or any similar firm or agency, as applicable, in book-entry form and credited to or otherwise held in an account, the Borrowers shall take such actions necessary to provide instruction to the relevant financial institution, clearing corporation, securities intermediary or other entity to effect and perfect a legally valid delivery of the relevant interest granted herein to the Administrative Agent as agent for the Lenders hereunder to be held in the Securities Account. Mortgage Assets delivered in book-entry form shall be under the custody of and held in the name of the Administrative Agent as agent for the Lenders in the Securities Account.
Appears in 1 contract
Sources: Credit Agreement (CapLease, Inc.)
Control Agreements. If any Obligor opens any Deposit Account or Securities Account (Aother than an Excluded Account) Each Note Party with any bank or securities intermediary, as applicable, or if any Deposit Account or Securities Account ceases to be an Excluded Account, such Obligor shall cause deliver to the Collateral Agent one or more control agreements in respect of such Deposit Account or Securities Account and shall supplement Schedule 4 to add such Deposit Account or Securities Account; provided, that any account or accounts in which the aggregate value of deposits therein or other property therein or credited thereto, together with all other such accounts under this proviso does not at any time exceed, for a period of three (3) consecutive Business Days, $500,000 shall not be subject to the foregoing requirements; provided, further that, for the avoidance of doubt, any Cash or other financial asset that is not Delivered shall not be included in the Borrowing Base. So long as no Event of Default has occurred and is continuing or would result therefrom, each Obligor may transfer, use and distribute its assets (and the proceeds thereof) that are in any Deposit Account or any Securities Account to the extent not prohibited by this Agreement or the other Debt Documents; provided, however, that if (a) the transfer of its such assets is to a Deposit Account or Securities Account maintained with a Person other than the Collateral Agent, (b) such assets are maintained in such Deposit Account or Securities Account by an Obligor, (c) such Deposit Account or Securities Account is not subject to a control agreement in favor of the Collateral Agent, (d) such Deposit Account or Securities Account is not an Excluded Account, and (e) after giving effect to the proposed transfer, the aggregate value of all such assets (that are not either maintained with the Collateral Agent or subject to a control agreement) would be greater than $500,000 in the aggregate, the Obligors shall not transfer such assets to such Deposit Account or Securities Account until such time as the applicable bank or securities intermediary executes a control agreement in favor of the Collateral Agent with respect to such Deposit Account or Securities Account. The Obligors shall provide written notice to the Collateral Agent in the event that the aggregate value of all assets held in such Deposit Accounts or Securities Accounts (other than Excluded Accounts), lockbox accounts and securities accounts to be subject to a “springing” account control agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox account Accounts or securities account (other than “Excluded Accounts”) unless a Control Agreement is entered into concurrently Securities Accounts maintained with the opening thereof.
(B) All account debtors Collateral Agent or other payment obligors of such Note Party shall be directed to directly remit all payments on each Note Party’s Accounts directly to a Deposit Account which are subject to a Control Agreement and each Note Party will immediately deposit in a Deposit Account subject to a Control Agreement all payments received from account debtors or other payments constituting proceeds favor of the Collateral received by such Note Party Agent) exceeds $500,000 in the identical form in which such payment was made, whether by cash or checkaggregate.
(C) Agent agrees that it shall only be permitted to give instructions or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided in accordance with this Section 4.9.
(D) Each Note Party hereby agrees that all payments made to any Deposit Account, securities account or otherwise received by Agent and whether on the Accounts or as proceeds of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, to a Deposit Account subject to a Control Agreement and, if requested by Agent after the occurrence and during the continuance of an Event of Default, to Agent at its address set forth in Section 11.3 below.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Bain Capital Specialty Finance, Inc.)
Control Agreements. (Aa) Each Note Party shall cause each of its Deposit Accounts Debtor represents, covenants and warrants that such Debtor does not have or maintain any deposit accounts (other than Excluded Deposit Accounts) as the date hereof except as set forth in Schedule III-1 hereto. The Debtors shall not, directly or indirectly, after the date hereof, establish or maintain any deposit account unless each of the following conditions is satisfied: (i) Agent shall have received not less than five (5) Business Days’ prior written notice of the intention of any Debtor to open or establish such account which notice shall specify in reasonable detail and specificity acceptable to Agent the name of the account, the owner of the account, the name and address of the bank at which such account is to be opened or established, the individual at such bank with whom such Debtor is dealing and the purpose of the account, (ii) the bank where such account is opened or maintained shall be acceptable to Agent, and (iii) in the case of any deposit account that is not an Excluded Deposit Account, on or before the opening of such deposit account, such Debtor shall deliver to Agent a Deposit Account Control Agreement with respect to such deposit account duly authorized, executed and delivered by such Debtor and the bank at which such deposit account is opened and maintained. No later than forty-five (45) days after the date hereof (or such later time as the Agent may agree in its sole discretion), lockbox accounts and securities accounts each Debtor shall cause each deposit account (other than Excluded Deposit Accounts) held or maintained by such Debtor on the date hereof to be subject to a “springing” account control agreement in form and substance reasonably satisfactory to Agent (a “Control Agreement”). No Note Party will open any new Deposit Accounts, lockbox account or securities account (other than “Excluded Accounts”) unless a Account Control Agreement duly executed by such Debtor and the bank at which such deposit account is entered into concurrently with the opening thereofmaintained and delivered to Agent.
(Bb) All account debtors income earned or other payment obligors proceeds received by any Debtor and any direct or indirect Domestic Subsidiary thereof during the term of such Note Party this Agreement shall be directed to directly remit all payments on each Note Party’s Accounts directly to deposited promptly upon (and in any event within one Business Day of) receipt thereof by such Debtor in a Deposit Account deposit account that is subject to a Control Agreement and each Note Party will immediately deposit in a fully executed Deposit Account subject to a Control Agreement all payments received from account debtors Agreement, except for such income earned or other payments constituting proceeds of Collateral received by such Note Party in the identical form in which such payment was made, whether by cash or check.
(C) Agent agrees that it shall only be permitted to give instructions be deposited in an Excluded Deposit Account or directions under any Control Agreement after the occurrence and during the continuance of an Event of Default. In addition, if the Event of Default giving rise to such instructions is cured or waived, as applicable, and no other Event of Default exists at such time, Agent shall give notice to the applicable bank canceling instructions provided Frost Bank Excluded Account in accordance with this Section 4.9.
(D) Agreement . Each Note Party hereby agrees Debtor shall take all steps to ensure that all payments made to any Deposit Account, securities of its account or otherwise received by Agent and whether on the Accounts or as proceeds debtors forward all items of other Collateral or otherwise, in each case, to the extent constituting Collateral, will be subject to the Lien of Agent, for the benefit of itself and the other Secured Parties. If any Note Party, or any of their respective Affiliates, employees, agents or any other Persons acting for or in concert with such Note Party, shall receive any monies, checks, notes, drafts or any other payments relating to and/or proceeds of any Note Party’s Accounts or other Collateral, such Note Party or such Person shall hold such instrument or funds in trust for Agent, and immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in kind, payment to a Deposit Account deposit account that is subject to a fully executed Deposit Account Control Agreement andAgreement, if requested by Agent after the occurrence and during the continuance in no event shall any Debtor direct any account debtor to forward any item of an Event of Default, payment to Agent at its address set forth in Section 11.3 below.any account other than a deposit account that is 168776.01000/150917043v.5
Appears in 1 contract
Sources: Pledge and Security Agreement (Nauticus Robotics, Inc.)