Deposit Accounts; Securities Accounts. 8.5.1 Schedule 8.5.1 sets forth all Deposit Accounts maintained by Borrowers as of the Closing Date, including all Dominion Accounts. Subject to Section 10.1.11, each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Deposit Account (other than (a) Deposit Accounts constituting Excluded Property, (b) for a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the accounts at each Existing Depositary Bank so long as the sweep instructions provided in Section 8.2.5 are being provided by the Borrowers and (c) for a period of sixty (60) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the deposit account maintained at JPMorgan Chase Bank, N.A., so long as such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any Affiliate thereof). Each Borrower shall be the sole account holder of each Deposit Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement) to have control over a Deposit Account or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items on behalf of the Borrowers and deposit such Payment Items into a Dominion Account of a Borrower. Each Borrower shall promptly notify Lender of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same. 8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender. 8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the Borrowers may maintain Securities Accounts with securities intermediates other than the Lender or an Affiliate of the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Securities Account . Each Borrower shall be the sole account holder of each Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement)) to have control over a Securities Account or any Property deposited therein.
Appears in 1 contract
Deposit Accounts; Securities Accounts. 8.5.1 Schedule 8.5.1 sets forth all Deposit Accounts maintained by Borrowers as of the Closing Date, including all Dominion Accounts. (A) Subject to Section 10.1.113.6, each Borrower and other Obligor shall take all actions necessary to establish LenderAgent’s control of (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists1) of each such Deposit Account (other than (a) Deposit Accounts constituting Excluded Propertythat is a collection or concentration account or required by Section 5.15(d)(ii)(B), (b2) for a period of ninety each Securities Account and (903) days each new Deposit Account and Securities Account opened after the Closing Date (in each case, other than (v) any Excluded Intermediation Account, (w) accounts exclusively used for payroll, taxes, trust, employee wage and benefit payments and other fiduciary deposit accounts, (x) zero balance accounts (other than zero balance accounts that are collection or such longer period as consented to by Lender, in its sole discretionconcentration accounts), (y) the accounts at each Existing Depositary Bank so long as the sweep instructions provided in Section 8.2.5 are being provided by the Borrowers Term Loan Collateral Proceeds Account and (cz) accounts containing not more than $1,000,000 individually and $5,000,000 in the aggregate for a period of sixty all such accounts under this clause (60z) days after the Closing Date at any time (or each an “Excluded Account” and collectively for all such longer period as consented to by Lender, accounts in its sole discretion)clauses (w) through (z) above, the deposit account maintained at JPMorgan Chase Bank, N.A., so long as such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any Affiliate thereof“Excluded Accounts”)). Unless an Event of Default or Cash Dominion Period then exists, Agent agrees not to give any instruction under any Control Agreement directing disposition of funds in any account subject to such Control Agreement. Notwithstanding the foregoing, the Billings Acquisition Escrow Account shall not be subject to the requirements of this Section 5.15(d)(i)(A) prior to the earlier of the ▇▇▇▇▇▇▇▇ Acquisition Date and the prepayment of the ▇▇▇▇▇▇▇▇ Acquisition Borrowing in accordance with Section 2.4(e)(iii).
(B) Each Borrower and each other Obligor shall be the sole account holder of each Deposit Account (other than an Excluded Account) and Securities Account (other than an Excluded Account) and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor AgreementAgent) to have control over a Deposit Account or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items on behalf of the Borrowers and deposit such Payment Items into a Dominion Securities Account of a Borrower. Each Borrower shall promptly notify Lender of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the Borrowers may maintain Securities Accounts with securities intermediates other than the Lender or an Affiliate of the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then existsTerm Loan Collateral Proceeds Account) of each such Securities Account . Each Borrower shall be the sole account holder of each Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement)) to have control over a Securities Account or any Property deposited therein.
(C) Each Borrower and each other Obligor shall promptly notify Agent of any opening of a Deposit Account or a Securities Account (in each case other than an Excluded Account).
(D) Within 120 days of the Closing Date, each Obligor shall request and otherwise take such commercially reasonable steps to ensure that all Account Debtors forward payment directly to lockboxes and Dominion Accounts maintained pursuant to and in accordance with Section 5.10(b)(iv).
(E) All Net Cash Proceeds of the sale or other disposition of any Collateral, shall be deposited directly into the applicable Dominion Accounts.
(ii) (A)Within 120 days of the Closing Date, until payment in full of the Obligations, each Borrower and the other Obligors shall establish and maintain their primary depository and treasury management relationships with the Agent or any of its Affiliates, except for (i) Excluded Accounts, (ii) other operating and Deposit Accounts maintained with financial institutions located in Hawaii with whom the Obligors currently have accounts, with an aggregate average monthly balance for all such accounts not to exceed $15,000,000; provided that the Agent may increase such $15,000,000 threshold or approve additional financial institutions located in Hawaii in its sole discretion, (iii) Deposit Accounts with Bank of America, N.A. or one or more of its Affiliates in relation to Accounts Set-up Under the ExxonMobil SAP Clone, (iv) one or more Deposit Accounts with Fifth Third Bank, National Association or its Affiliates in aggregate amounts not to exceed $50,000,000, and (v) depository or treasury management services for which the Agent or one of its Affiliates do not provide in the applicable jurisdiction.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.)
Deposit Accounts; Securities Accounts. 8.5.1 Schedule 8.5.1 sets forth all Unless Lender agrees otherwise in writing, Borrower agrees not to withdraw any funds from any Deposit Account or Securities Account pledged to Lender pursuant to this Agreement except for the Designated Account, the Segregated Account, the BONY Account, and any Deposit Accounts maintained by Borrowers identified on Schedule 5.15 to the Information Certificate which are specifically and exclusively used for or in connection with payroll, payroll taxes and other employee wage and benefit payments to or for employees of Borrower or any of its Subsidiaries, and offsets for the Regions Bank LC; provided, that Borrower shall only be permitted to withdraw funds from the Segregated Account so long as, as of any date of determination, (1) such funds are used solely for the Closing Datepayment of interest on the Senior Secured Bonds, including all Dominion Accounts. Subject to Section 10.1.11and (2) the amount in the Segregated Account does not, each as of such date of determination, exceed $15,000,000; and provided, further, that as of any date of determination, Borrower shall take all actions necessary not permit the BONY Account to establish Lender’s control (provided hold funds in excess of $20,000, or such greater amount as may be consented to in writing by Lender agrees that such control shall be subject from time to time in order for Borrower to comply with the terms and conditions of the Intercreditor Agreement andSenior Secured Bonds (other than with respect to Borrower’s obligation to make interest and other similar payments with respect to such Senior Secured Bonds to the holders thereof); and provided, in additionfurther, that Lender to the extent that Borrower fails to obtain a Control Agreement with respect to the Global Hunter Securities Account, Borrower shall not exercise such control unless an Event permit, as of Default then existsany date of determination, the Global Hunter Securities Account to hold funds in excess of the amount Borrower may use pursuant to the terms and conditions hereof (including, without limitation, Section 7.11) to make Permitted Investments of the type described in clause (f)(ii) of the definition thereof for the thirty day period beginning on such date of determination. The foregoing references to the ability of Borrower to withdraw funds from any such Deposit Account (including, without limitation, the Segregated Account) or Securities Account shall not be deemed to limit or in any manner be a waiver of Lender’s rights, as holder of a first-priority perfected security interest in each such Deposit Account (other than (a) Deposit Accounts constituting Excluded Propertyincluding, (b) for a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion)without limitation, the accounts at each Existing Depositary Bank so long as the sweep instructions provided in Section 8.2.5 are being provided by the Borrowers Segregated Account) or Securities Account to exercise its rights and remedies against any such Deposit Account (c) for a period of sixty (60) days after the Closing Date (or such longer period as consented to by Lenderincluding, in its sole discretion)without limitation, the deposit account maintained at JPMorgan Chase Bank, N.A., so long as such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. Segregated Account) or any Affiliate thereof). Each Borrower shall be the sole account holder of each Deposit Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement) , if applicable), including, without limitation, the right to have control over a apply funds in each such Deposit Account (including, without limitation, the Segregated Account) or Securities Account to payment of all or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items on behalf portion of the Borrowers Obligations then due and deposit such Payment Items into a Dominion Account payable (whether by virtue of acceleration, commencement of a Borrower. Each Borrower shall promptly notify Lender bankruptcy proceeding or otherwise) during the existence and continuation of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the Borrowers may maintain Securities Accounts with securities intermediates other than the Lender or an Affiliate of the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Securities Account . Each Borrower shall or as otherwise may be permitted under applicable law and the sole account holder of each Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement)) to have control over a Securities Account or any Property deposited thereinLoan Documents.
Appears in 1 contract
Sources: Credit and Security Agreement (U.S. Well Services, LLC)
Deposit Accounts; Securities Accounts. 8.5.1 Schedule 8.5.1 sets forth all Deposit Accounts maintained by Borrowers as of the Closing Date, including all Dominion Accounts. Subject to Section 10.1.11, each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Deposit Account (other than (a) Deposit Accounts constituting Excluded Property, (b) for a period of ninety (90) Within 120 days after following the Closing Date (or as such longer period as consented to by Lender, in its sole discretion), the accounts at each Existing Depositary Bank so long as the sweep instructions provided in Section 8.2.5 are being provided date may be extended by the Borrowers and (c) for a period of sixty (60) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the deposit account maintained at JPMorgan Chase Bank, N.A., so long as such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any Affiliate thereof). Each Borrower shall be the sole account holder of each Deposit Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement) to have control over a Deposit Account or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items on behalf of the Borrowers and deposit such Payment Items into a Dominion Account of a Borrower. Each Borrower shall promptly notify Lender of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, Administrative Agent in its sole discretion), the Borrowers may maintain and the Subsidiary Guarantors shall (i) have established a cash management arrangement of a type and on terms satisfactory to the Administrative Agent in its Permitted Discretion (including the establishment of a new Deposit Account, which shall serve as the Specified Disbursement Account), and have provided an updated Schedule 3.27, reflecting a true, correct and complete list of their respective Deposit Accounts and Securities Accounts that are Specified ABL Accounts at such time, (ii) have caused each Deposit Account Bank and each Securities Intermediary with securities intermediates whom a Controlled Account that is not a Residual Bank Account is maintained to enter into a Deposit Account Control Agreement or Securities Account Control Agreement, as applicable, and (iii) have deposited (and thereafter continue to deposit) in a Specified ABL Account all cash (including all Collections) received by them in respect of any ABL Priority Collateral. If, following such 120th (or later) day, any Residual Bank Account remains open, the Borrowers and the Subsidiary Guarantors shall cause each Deposit Account Bank and each Securities Intermediary with whom any such Residual Bank Account is maintained to enter into a Deposit Account Control Agreement or Securities Account Control Agreement, as applicable, within 30 days thereafter. Except to the extent permitted by the immediately preceding two sentences with respect to the respective periods set forth therein, the Borrowers and the Subsidiary Guarantors shall not establish or maintain any Specified ABL Account unless a Deposit Account Control Agreement or a Securities Account Control Agreement, as applicable, has been entered into or such Specified ABL Account is a Non-Controlled Account. Each Restricted Party shall instruct all account debtors of such Restricted Party to remit all payments in Dollars to the appropriate Specified ABL Account. All amounts received by any Restricted Party in respect of any account of an account debtor of any Restricted Party shall upon receipt be deposited into a Specified ABL Account.
(b) Each Deposit Account Control Agreement and Securities Account Control Agreement relating to a Controlled Account shall (unless otherwise agreed by the Administrative Agent in its Permitted Discretion) provide, among other things, that, from and after the date requested by the Administrative Agent, the applicable Deposit Account Bank will transfer all collected amounts held in such Controlled Account by wire transfer or similar electronic transfer no less frequently than once per Business Day to one or more accounts maintained by the Lender Administrative Agent or an Affiliate thereof; provided, that, the Administrative Agent will not issue any such request (i) with respect to any Controlled Account that receives Collections in respect of the Lenderany ABL Priority Collateral, but thereafter all Securities Accounts must be maintained except at such time as a Cash Dominion Period exists and is continuing, and (ii) with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject respect to the terms and conditions of any other Controlled Accounts (including the Intercreditor Agreement andSpecified Disbursement Account), in addition, that Lender shall not exercise except at such control unless time as an Event of Default then exists) exists and is continuing. Subject to the terms of each such Securities Account . Each Borrower the respective Security Documents, all amounts received by the Administrative Agent shall be applied (and allocated) on a daily basis in accordance with Section 2.09(c).
(c) In the sole account holder of each event that (i) any Borrower, any Subsidiary Guarantor, or any Deposit Account Bank or Securities Intermediary at a financial institution at which a Controlled Account and is open, in either case shall not allow any other Person (other than Lender terminate a Deposit Account Control Agreement or ABL Lender, so long as subject to the Intercreditor Agreement)) to have control over a Securities Account Control Agreement for any reason or (ii) the Collateral Agent shall demand such termination as a result of the Deposit Account Bank or the Securities Intermediary at which a Controlled Account is open to fail to comply with the applicable Security Document or this Section 5.14, the applicable Loan Party shall notify all of its obligors that were making payments to such terminated Controlled Account, to make all future payments to another Controlled Account in which at Deposit Account Control Agreement or Securities Account Control Agreement is in effect.
(d) The parties hereto hereby acknowledge, confirm and agree that the implementation of the cash management arrangements contemplated herein is a contractual right provided to the Agents and the Lenders hereunder in order for the Agents and the Lenders to manage and monitor their collateral position and not a proceeding for enforcement or recovery of a claim, or pursuant to, or an enforcement of, any Property deposited thereinsecurity or remedies whatsoever, that the cash management arrangements contemplated herein are critical to the structure of the lending arrangements contemplated herein, that the Lenders are relying on the Loan Parties’ acknowledgement, confirmation and agreement with respect to such cash management arrangements in making accommodations of credit available to the Borrowers and in particular that any accommodations of credit are being provided by the Lenders to the Borrowers strictly on the basis of a borrowing base calculation to fully support and collateralize any such accommodations of credit hereunder.
Appears in 1 contract
Sources: Abl Credit Agreement (Overseas Shipholding Group Inc)
Deposit Accounts; Securities Accounts. 8.5.1 Schedule 8.5.1 sets forth all Deposit Accounts maintained by Borrowers as of the Closing Date, including all Dominion Accounts. Subject to Section 10.1.11, each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Deposit Account (other than (a) Deposit Accounts constituting Excluded Property, (b) for a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the accounts at each Existing Depositary Bank so long as the sweep instructions provided in Section 8.2.5 are being provided by the Borrowers and (c) for a period of sixty (60) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the deposit account maintained at JPMorgan Chase Bank, N.A., so long as such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any an Affiliate thereof). Each Borrower shall be the sole account holder of each Deposit Account and shall not allow any other Person (other than Lender or ABL Term Lender, so long as subject to the Intercreditor Agreement)) to have control over a Deposit Account or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items on behalf of the Borrowers and deposit such Payment Items into a Dominion Account of a Borrower. Each Borrower shall promptly notify Lender of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the Borrowers may maintain Securities Accounts with securities intermediates other than the Lender or an Affiliate of the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Securities Account . Each Borrower shall be the sole account holder of each Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement)) to have control over a Securities Account or any Property deposited therein.
Appears in 1 contract
Deposit Accounts; Securities Accounts. 8.5.1 (a) Schedule 8.5.1 8.5 sets forth all Deposit Accounts and Securities Accounts maintained by Borrowers and other Obligors, including all Dominion Accounts as of the Closing Date, including all Dominion Accounts. Subject to Section 10.1.11, each Each Borrower and other Obligors shall take all actions necessary to establish LenderAdministrative Agent’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Deposit Account (other than i) that is a collections account and (aii) as required by Section 8.5(b) and each such Securities Account and each new Deposit Accounts constituting Excluded Property, (b) for a period of ninety (90) days Account and Securities Account opened after the Closing Date (or other than (A) accounts exclusively used for payroll, withholding tax and other fiduciary deposit accounts and (B) accounts containing not more than $25,000 individually and $500,000 in the aggregate for all such longer period as consented to by Lender, accounts at any time (each an “Excluded Account” and collectively for all such accounts in its sole discretion)clauses (A) and (B) above, the accounts at each Existing Depositary Bank so long as the sweep instructions provided in Section 8.2.5 are being provided by the Borrowers and (c) for a period of sixty (60) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion“Excluded Accounts”), the deposit account maintained at JPMorgan Chase Bank, N.A., so long as such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any Affiliate thereof). Each Borrower and each other Obligor shall be the sole account holder of each Deposit Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement) to have control over a Deposit Account or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items on behalf of the Borrowers and deposit such Payment Items into a Dominion Account of a Borrower. Each Borrower shall promptly notify Lender of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the Borrowers may maintain Securities Accounts with securities intermediates other than the Lender or an Affiliate of the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Securities Account . Each Borrower shall be the sole account holder of each Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement)Administrative Agent,) to have control over a Deposit Account or a Securities Account (other than the Notes Proceeds Collateral Account) or any Property deposited therein. Each Borrower and each other Obligor shall promptly notify Administrative Agent of any opening or closing of a Deposit Account or a Securities Account (other than an Excluded Account) and, with the consent of Administrative Agent, will amend Schedule 8.5 to reflect same. Each Borrower shall (i) request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to lockboxes and Dominion Accounts maintained pursuant to and in accordance with Section 8.2.4, and (ii) deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a lockbox) into one or more Dominion Accounts. All Net Proceeds of the sale or other disposition of any Collateral, shall be deposited directly into the applicable Dominion Accounts.
(b) Until Full Payment of the Obligations, each Borrower and the other Obligors shall cause all funds or other property of such Borrower or Obligor maintained in any Deposit Accounts or Securities Accounts to be solely maintained in Deposit Accounts or Securities Accounts held with Bank of America, N.A. or any of its Affiliates, except for (i) Excluded Accounts and (ii) other operating and Deposit Accounts maintained with ▇▇▇▇▇ Fargo Bank, National Association and financial institutions located in Hawaii with whom the Obligors currently have accounts, with an aggregate average monthly balance for all such accounts not to exceed $15,000,000; provided that the Administrative Agent may increase such $15,000,000 threshold or approve additional financial institutions located in Hawaii in its sole discretion. At all times starting on the Closing Date, all operating and Deposit Accounts described in sub-clause (ii) above shall be subject to a Deposit Account Control Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Par Pacific Holdings, Inc.)
Deposit Accounts; Securities Accounts. 8.5.1 Schedule 8.5.1 sets forth all Deposit Accounts maintained by Borrowers as of the Closing Date, including all Dominion Accounts. (A) Subject to Section 10.1.113.6, each Borrower and other Obligor shall take all actions necessary to establish LenderAgent’s control of (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists1) of each such Deposit Account (other than (a) Deposit Accounts constituting Excluded Propertythat is a collection or concentration account or required by Section 5.15(d)(ii)(B), (b2) for a period of ninety each Securities Account and (903) days each new Deposit Account and Securities Account opened after the Closing Date (in each case, other than (w) accounts exclusively used for payroll, taxes, trust, employee wage and benefit payments and other fiduciary deposit accounts, (x) zero balance accounts (other than zero balance accounts that are collection or such longer period as consented to by Lender, in its sole discretionconcentration accounts), (y) the accounts at each Existing Depositary Bank so long as the sweep instructions provided in Section 8.2.5 are being provided by the Borrowers Term Loan Collateral Proceeds Account and (cz) accounts containing not more than $1,000,000 individually and $5,000,000 in the aggregate for a period of sixty all such accounts under this clause (60z) days after the Closing Date at any time (or each an “Excluded Account” and collectively for all such longer period as consented to by Lender, accounts in its sole discretion)clauses (w) through (z) above, the deposit account maintained at JPMorgan Chase Bank, N.A., so long as such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any Affiliate thereof“Excluded Accounts”)). Unless an Event of Default or Cash Dominion Period then exists, Agent agrees not to give any instruction under any Control Agreement directing disposition of funds in any account subject to such Control Agreement. Notwithstanding the foregoing, the Billings Acquisition Escrow Account shall not be subject to the requirements of this Section 5.15(d)(i)(A) prior to the earlier of the Billings Acquisition Date and the prepayment of the Billings Acquisition Borrowing in accordance with Section 2.4(e)(iii).
(B) Each Borrower and each other Obligor shall be the sole account holder of each Deposit Account (other than an Excluded Account) and Securities Account (other than an Excluded Account) and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor AgreementAgent) to have control over a Deposit Account or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items on behalf of the Borrowers and deposit such Payment Items into a Dominion Securities Account of a Borrower. Each Borrower shall promptly notify Lender of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the Borrowers may maintain Securities Accounts with securities intermediates other than the Lender or an Affiliate of the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then existsTerm Loan Collateral Proceeds Account) of each such Securities Account . Each Borrower shall be the sole account holder of each Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement)) to have control over a Securities Account or any Property deposited therein.
(C) Each Borrower and each other Obligor shall promptly notify Agent of any opening of a Deposit Account or a Securities Account (in each case other than an Excluded Account).
(D) Within 120 days of the Closing Date, each Obligor shall request and otherwise take such commercially reasonable steps to ensure that all Account Debtors forward payment directly to lockboxes and Dominion Accounts maintained pursuant to and in accordance with Section 5.10(b)(iv).
(E) All Net Cash Proceeds of the sale or other disposition of any Collateral, shall be deposited directly into the applicable Dominion Accounts.
(A) Within 120 days of the Closing Date, until payment in full of the Obligations, each Borrower and the other Obligors shall establish and maintain their primary depository and treasury management relationships with the Agent or any of its Affiliates, except for (i) Excluded Accounts, (ii) other operating and Deposit Accounts maintained with financial institutions located in Hawaii with whom the Obligors currently have accounts, with an aggregate average monthly balance for all such accounts not to exceed $15,000,000; provided that the Agent may increase such $15,000,000 threshold or approve additional financial institutions located in Hawaii in its sole discretion, (iii) Deposit Accounts with Bank of America, N.A. or one or more of its Affiliates in relation to Accounts Set-up Under the ExxonMobil SAP Clone, (iv) one or more Deposit Accounts with Fifth Third Bank, National Association or its Affiliates in aggregate amounts not to exceed $50,000,000, and (v) depository or treasury management services for which the Agent or one of its Affiliates do not provide in the applicable jurisdiction.
(B) At all times (subject to Section 3.6), all operating and Deposit Accounts described in Section 5.15(d)(ii)(A)(ii) shall be subject to a Deposit Account Control Agreement.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.)
Deposit Accounts; Securities Accounts. 8.5.1 (a) Schedule 8.5.1 8.5 sets forth all Deposit Accounts and Securities Accounts maintained by Borrowers and other Obligors, including all Dominion Accounts as of the Closing Date, including all Dominion Accounts. Subject to Section 10.1.11, each Each Borrower and other Obligors shall take all actions necessary to establish LenderAdministrative Agent’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Deposit Account (i) that is a collections account and (ii) as required by Section 8.5(b) and each such Securities Account and each new Deposit Account and Securities Account opened after the Closing Date (other than (aA) accounts exclusively used for payroll, withholding tax and other fiduciary deposit accounts and (B) accounts containing not more than $25,000 individually and $500,000 in the aggregate for all such accounts at any time (each an “Excluded Account” and collectively for all such accounts in clauses (A) and (B) above, the “Excluded Accounts”)). Each Borrower and each other Obligor shall be the sole account holder of each Deposit Account and Securities Account and shall not allow any other Person (other than Administrative Agent,) to have control over a Deposit Account or a Securities Account (other than the Notes Proceeds Collateral Account) or any Property deposited therein. Each Borrower and each other Obligor shall promptly notify Administrative Agent of any opening or closing of a Deposit Account or a Securities Account (other than an Excluded Account) and, with the consent of Administrative Agent, will amend Schedule 8.5 to reflect same. Each Borrower shall (i) request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to lockboxes and Dominion Accounts maintained pursuant to and in accordance with Section 8.2.4, and (ii) deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting Excluded Propertypayments made in respect of any and all Collateral (whether or not otherwise delivered to a lockbox) into one or more Dominion Accounts. All Net Proceeds of the sale or other disposition of any Collateral, shall be deposited directly into the applicable Dominion Accounts.
(b) for a period of Commencing on the date that is ninety (90) days after the Closing Date (or such longer period later date as consented may be agreed to by Lender, the Administrative Agent in its sole discretion)) and continuing until Full Payment of the Obligations, each Borrower and the accounts at each Existing Depositary other Obligors shall cause all funds or other property of such Borrower or Obligor maintained in any Deposit Accounts or Securities Accounts to be solely maintained in Deposit Accounts or Securities Accounts held with Bank so long as the sweep instructions provided in Section 8.2.5 are being provided by the Borrowers of America, N.A. or any of its Affiliates, except for (i) Excluded Accounts and (cii) other operating and Deposit Accounts maintained with financial institutions located in Hawaii with whom the Obligors currently have accounts, with an aggregate average monthly balance for a period of sixty (60) days after all such accounts not to exceed $10,000,000; provided that the Closing Date (Administrative Agent may increase such $10,000,000 threshold or such longer period as consented to by Lender, approve additional financial institutions located in Hawaii in its sole discretion), the deposit account maintained at JPMorgan Chase Bank, N.A., so long as such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any Affiliate thereof). Each Borrower shall be the sole account holder of each Deposit Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement) to have control over a Deposit Account or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items At all times starting on behalf of the Borrowers and deposit such Payment Items into a Dominion Account of a Borrower. Each Borrower shall promptly notify Lender of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety , all operating and Deposit Accounts described in sub-clause (90ii) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the Borrowers may maintain Securities Accounts with securities intermediates other than the Lender or an Affiliate of the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control above shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Securities a Deposit Account . Each Borrower shall be the sole account holder of each Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Control Agreement)) to have control over a Securities Account or any Property deposited therein.
Appears in 1 contract
Sources: Loan and Security Agreement (Par Pacific Holdings, Inc.)
Deposit Accounts; Securities Accounts. 8.5.1 Schedule 8.5.1 sets forth all Subject to Section 9.17 of the Credit Agreement with respect to any Deposit Accounts maintained Account or Securities Account, in each case located in the United States and excluding any Excluded Accounts, held by Borrowers any Grantor as of the Closing Date or opened or acquired after the Closing Date, including all Dominion Accountseach Grantor shall provide the Agent Deposit Account Control Agreements or Securities Account Control Agreements, as applicable, duly executed on behalf of such Grantor and each bank, financial institution or other Person holding any Deposit Account or a Securities Account, in each case located in the United States, of such Grantor. Subject to Section 10.1.11, each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject Notwithstanding the foregoing or anything to the terms and conditions contrary in the Credit Documents, the Grantors shall in no event be required to deliver a Deposit Account Control Agreement or a Securities Account Control Agreement (i) with respect to (x) any Excluded Account or (y) any Deposit Account or Securities Account located outside of the Intercreditor Agreement andUnited States and (ii) in the case of any Deposit Account or Securities Account, in additioneach case located in the United States, that is opened or acquired after the Closing Date or that ceases to be an Excluded Account, before the date that is sixty (60) days (or such later date as may be agreed by the Agent (in consultation with the Specified Lender shall not exercise Advisor) in its reasonable discretion) after the first date on which such control unless account exists in the name of a Grantor (or ceases to be an Event of Default then exists) of each such Excluded Account). Notwithstanding the foregoing, no Grantor may deposit funds into any Deposit Account or Securities Account (other than except for Excluded Accounts) opened or otherwise acquired after the Closing Date, in each case, which are located in the United States, for which a Deposit Account Control Agreement or Securities Account Control Agreement, as applicable, has not been delivered (a) to the extent required to have been entered into at such time pursuant to this Section 4.06); provided that, a Grantor may deposit funds into any Deposit Accounts constituting Excluded Property, (b) for a period of ninety (90) days Account or Securities Account opened or otherwise acquired after the Closing Date (for which a Deposit Account Control Agreement or Securities Account Control Agreement, as applicable, is required by this Section 4.06 to have been delivered but has not yet been delivered) (any such longer period as consented Deposit Account or Securities Account, a “New Non-Excluded Account”) prior to by Lender, in its sole discretion), the accounts at each Existing Depositary Bank so long as the sweep instructions provided in Section 8.2.5 are being provided by the Borrowers and (c) for a period of date that is sixty (60) days after the Closing Date (or such longer period later date as consented to may be agreed by Lender, the Agent (in consultation with the Specified Lender Advisor) in its sole reasonable discretion)) after the first date on which such New Non-Excluded Account exists in the name of such Grantor; provided, further, that (a) if a New Non-Excluded Account is intended to be the primary cash concentration account of the Borrower and its Subsidiaries, no Grantor may deposit account maintained at JPMorgan Chase Bank, N.A., so long as funds into such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any Affiliate thereof). Each Borrower shall be the sole account holder of each Deposit Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement) to have control over until a Deposit Account Control Agreement or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items on behalf of the Borrowers and deposit such Payment Items into a Dominion Account of a Borrower. Each Borrower shall promptly notify Lender of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the Borrowers may maintain Securities Accounts with securities intermediates other than the Lender or an Affiliate of the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Securities Account . Each Borrower shall be Control Agreement, as applicable, has been delivered in accordance with this Section 4.06 and (b) no Grantor may deposit funds into any New Non-Excluded Account that was formed for the sole account holder purpose of each Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to circumventing the Intercreditor Agreement)) to have control over a Securities Account or any Property deposited thereinrequirements set forth in this Section 4.06.
Appears in 1 contract
Deposit Accounts; Securities Accounts. 8.5.1 Schedule 8.5.1 sets forth all Deposit Accounts maintained by Borrowers as of the Closing Date, including all Dominion Accounts. Subject to Section 10.1.11, each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Deposit Account (other than (a) Deposit Accounts constituting Excluded Property, (b) for a period of ninety (90) Within 90 days after following the Closing Date (or as such longer period as consented to by Lender, in its sole discretion), the accounts at each Existing Depositary Bank so long as the sweep instructions provided in Section 8.2.5 are being provided date may be extended by the Borrowers and (c) for a period of sixty (60) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the deposit account maintained at JPMorgan Chase Bank, N.A., so long as such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any Affiliate thereof). Each Borrower shall be the sole account holder of each Deposit Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement) to have control over a Deposit Account or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items on behalf of the Borrowers and deposit such Payment Items into a Dominion Account of a Borrower. Each Borrower shall promptly notify Lender of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, Administrative Agent in its sole discretion), the Borrowers may maintain and the Subsidiary Guarantors shall (i) have provided an updated Part A and Part B of Schedule 3.27, reflecting true, correct and complete list of their respective Deposit Accounts and Securities Accounts that are Specified Accounts at such time, (ii) have caused each Deposit Account Bank and each Securities Intermediary with securities intermediates other than whom a Controlled Account that is not a Residual Bank Account is maintained to enter into a Deposit Account Control Agreement or Securities Account Control Agreement, as applicable, and (iii) have deposited (and thereafter continue to deposit) in a Specified Account all cash received by them in respect of any Collateral. If, following such 90th (or later) day, any Residual Bank Account remains open, the Lender or an Affiliate of Borrowers and the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower Subsidiary Guarantors shall take all actions necessary to establish Lender’s control (provided Lender agrees that cause each such control shall be subject to the terms Deposit Account Bank and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Securities Intermediary with whom any such Residual Bank Account . Each Borrower shall be the sole account holder of each is maintained to enter into a Deposit Account Control Agreement or Securities Account Control Agreement, as applicable, within 30 days thereafter. Except to the extent permitted by the immediately preceding two sentences, with respect to the respective periods set forth therein, the Borrowers and the Subsidiary Guarantors shall not allow establish or maintain any other Person (other than Lender Specified Account unless a Deposit Account Control Agreement or ABL Lender, so long as subject to the Intercreditor Agreement)) to have control over a Securities Account Control Agreement, as applicable, has been entered into or such Specified Account is a Non-Controlled Account. Each Restricted Party shall instruct all account debtors of such Restricted Party to remit all payments in Dollars to the appropriate Specified Account. All amounts received by any Restricted Party in respect of any account of an account debtor of any Restricted Party shall upon receipt be deposited into a Specified Account. Except as provided in Section 5.22, at no time on or after the Fourth Amendment Effective Date shall any Restricted Party (x) instruct any account debtors of such Restricted Party to remit any payments to a Specified Account of the Administrative Borrower and, to the extent that any such payments are received in a Specified Account of the Administrative Borrower, the Administrative Borrower shall transfer such amounts within 5 Business Days to a Specified Account of the Subsidiary HoldCo or (y) deposit any amounts received by any Restricted Party in respect of any account of an account debtor of any Restricted Party into a Specified Account of the Administrative Borrower.
(b) In the event that (i) any Borrower, any Subsidiary Guarantor, or any Property deposited thereinDeposit Account Bank or Securities Intermediary at a financial institution at which a Controlled Account is open, in either case shall terminate a Deposit Account Control Agreement or a Securities Account Control Agreement for any reason or (ii) the Collateral Agent shall demand such termination as a result of the Deposit Account Bank or the Securities Intermediary at which a Controlled Account is open to fail to comply with the applicable Security Document or this Section 5.14, the applicable Loan Party shall notify all of its obligors that were making payments to such terminated Controlled Account, to make all future payments to another Controlled Account that is not a Controlled Account of the Administrative Borrower and in which at Deposit Account Control Agreement or Securities Account Control Agreement is in effect.
(c) The parties hereto hereby acknowledge, confirm and agree that the implementation of the cash management arrangements contemplated herein is a contractual right provided to the Agents and the Lenders hereunder in order for the Agents and the Lenders to manage and monitor their collateral position and not a proceeding for enforcement or recovery of a claim, or pursuant to, or an enforcement of, any security or remedies whatsoever, that the cash management arrangements contemplated herein are critical to the structure of the lending arrangements contemplated herein, that the Lenders are relying on the Loan Parties’ acknowledgement, confirmation and agreement with respect to such cash management arrangements in making accommodations of credit available to the Borrowers.
Appears in 1 contract
Deposit Accounts; Securities Accounts. 8.5.1 Schedule 8.5.1 sets forth Each Grantor shall cause at all Deposit Accounts maintained by Borrowers as of the Closing Date, including all Dominion Accounts. Subject to Section 10.1.11, times (i) each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such depositary bank holding a Deposit Account (other than (aExempt Accounts) Deposit Accounts constituting Excluded Propertyowned by such Grantor, (b) for a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the accounts at each Existing Depositary Bank so long as the sweep instructions provided in Section 8.2.5 are being provided by the Borrowers and (cii) for a period of sixty (60) days after the Closing Date (each Securities Intermediary holding any Investment Property or such longer period as consented to by Lender, in its sole discretion), the deposit account maintained at JPMorgan Chase Bank, N.A., so long as such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any Affiliate thereof). Each Borrower shall be the sole account holder of each Deposit Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as Exempt Accounts) owned by such Grantor to be subject to an executed and delivered control agreement (each a "Control Agreement") in form and substance reasonably acceptable to the Intercreditor AgreementAgent, providing, among other things, for (A) the Agent to have control Control over a each such Deposit Account or any Property deposited therein; provided that IMSSecurities Account, consistent with past practiceas applicable (collectively, may receive certain Payment Items on behalf the "Blocked Accounts"), (B) the depositary bank or Securities Intermediary, as applicable, to follow the exclusive directions of the Borrowers and deposit such Payment Items into a Dominion Account Agent upon notice from the Agent delivered during the continuance of a Borrower. Each Borrower shall promptly notify Lender of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the Borrowers may maintain Securities Accounts with securities intermediates other than the Lender or an Affiliate of the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each with respect to such Blocked Accounts, without the need for any notice to or consent from any Loan Party (any such depositary bank executing and delivering any such control agreement, a "Controlled Depositary", and any such Securities Intermediary executing and delivering any such control agreement, a "Controlled Intermediary"). In no event shall any Grantor establish any Deposit Account . Each Borrower shall be the sole account holder of each Securities Account and shall not allow any other Person (other than Lender an Exempt Account) or ABL LenderSecurities Account (other than any Exempt Account) until each of the requirements set forth in the preceding sentence shall have been satisfied. Whenever any Grantor shall receive any cash, so long as subject Cash Equivalents, money, checks or any other similar items of payment relating to any Collateral (including any Proceeds of any Collateral), such Grantor agrees that it will, within one (1) Business Day of such receipt, deposit all such items of payment into a Blocked Account (or a Exempt Account, to the Intercreditor Agreement)extent applicable) and such amounts shall remain therein until expended in accordance with the terms of the Credit Agreement or applied to have control over a Securities Account the Obligations; and until such Grantor shall deposit such cash, Cash Equivalents, money, checks or any Property deposited thereinother similar items of payment in a Blocked Account (or a Exempt Account, to the extent applicable), such Grantor shall hold such cash, Cash Equivalents, money, checks or any other similar items of payment in trust for the Secured Persons and as property of the Secured Persons, separate from the other funds of such Grantor.
Appears in 1 contract
Sources: Collateral Agreement (Unifund Financial Technologies, Inc.)
Deposit Accounts; Securities Accounts. 8.5.1 (a) Schedule 8.5.1 8.6 sets forth all Deposit Accounts and Securities Accounts maintained by Borrowers and other Obligors, including all Dominion Accounts as of the Closing Date, including all Dominion Accounts. Subject to Section 10.1.11the terms of the Intercreditor Agreement, each Borrower and other Obligors shall take all actions necessary to establish LenderAgent’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Deposit Account and Securities Account and each new Deposit Account and Securities Account opened after the Closing Date (other than (a) Deposit Accounts constituting Excluded Propertyaccounts exclusively used for payroll, withholding tax and other fiduciary deposit accounts and (b) accounts containing not more than $1,000,000 for a period all such accounts at any time (each an “Excluded Account” and collectively for all such accounts in clauses (a) and (b) above, the “Excluded Accounts”); provided, that, until U.S. Borrowers and the other U.S. Facility Obligors shall have satisfied the requirements of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretionSection 8.6(b), the accounts at each Existing Depositary Bank so as long as (1) such Obligors maintain a Dominion Account with ▇▇▇▇▇ Fargo Bank, N.A. no. 4121872774 (the sweep instructions “Specified ▇▇▇▇▇ Master Account”) and (2) funds on deposit in the Deposit Accounts set forth on Schedule 8.6(a) are swept and deposited in the Specified ▇▇▇▇▇ Master Account with the frequency shown for each such Deposit Account on Schedule 8.6(a), such Deposit Accounts shall not be required to be subject to Agent’s control as provided in this Section 8.2.5 are being provided by the Borrowers and (c) for a period of sixty (60) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the deposit account maintained at JPMorgan Chase Bank, N.A., so long as such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any Affiliate thereof8.6(a). Each Borrower One or more Obligors shall be the sole account holder holders of each Deposit Account and Securities Account of any Obligor and shall not allow any other Person (other than Lender or ABL LenderAgent and, so long as subject to the Intercreditor Agreement, the Term Loan Agent) to have control over a Deposit Account or a Securities Account or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items on behalf of the Borrowers and deposit such Payment Items into a Dominion Account of a Borrower. Each Borrower and each other Obligor shall promptly notify Lender Agent of any opening or closing of a Deposit Account andor a Securities Account (other than an Excluded Account). Each Borrower shall (i) request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to lockboxes and Dominion Accounts maintained pursuant to and in accordance with Section 8.2.4, and (ii) deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof (except with respect to up to $1,000,000 at any given time, the consent fifth Business Day after the receipt thereof), all cash, checks, drafts or other similar items of Lender, will amend Schedule 8.5 payment relating to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each or constituting payments made in respect of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank ABL Priority Collateral (whether or not otherwise delivered to a lockbox) into one or more Dominion Account maintained at Accounts. All Net Proceeds of the sale or other disposition of any ABL LenderPriority Collateral, shall be deposited directly into the applicable Dominion Accounts.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of (b) Commencing on the Closing Date. For a period of ninety date that is one hundred and twenty (90120) days after the Closing Date (or such longer period later date as consented may be agreed to by Lender, Agent in its sole discretion)) and continuing until Full Payment of the Obligations, each U.S. Borrower and the Borrowers may maintain Securities Accounts with securities intermediates other U.S. Facility Obligors shall cause all funds or other property of such U.S. Borrower or U.S. Facility Obligor maintained in any Deposit Accounts, (other than the Lender or an Affiliate of the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless an Event of Default then exists) of each such Securities Account . Each Borrower shall be the sole account holder of each Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement)TL Priority Collateral Account) to have control over a Securities Account be solely maintained in Deposit Accounts held with Bank of America, N.A. or any Property deposited thereinof its Affiliates, except for Excluded Accounts.
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Deposit Accounts; Securities Accounts. 8.5.1 Schedule 8.5.1 sets With respect to any deposit accounts, securities accounts and security entitlements included in the Collateral, each Debtor shall ensure that the Collateral Agent has Control thereof, including that the Collateral Agent has Control of the securities accounts and deposit accounts set forth all Deposit Accounts maintained by Borrowers on Annex D , (i) in the case of the deposit accounts, securities accounts and securities entitlements of the Debtors as of the Closing Datedate hereof, including all Dominion Accountswithin 60 days after the date hereof (or as such period may be extended by the Credit Facility Agent but in no event later than 90 days after the date hereof) and (ii) in the case of the deposit accounts, securities accounts and securities entitlements of the Debtors established or acquired after the date hereof, within 45 days after the date on which such deposit accounts, securities accounts and security entitlements constitute Collateral (or as such period may be extended by the Credit Facility Agent but in no event later than 90 days after the date such deposit accounts, securities accounts and security entitlements constitute Collateral). Subject With respect to Section 10.1.11any securities accounts or securities entitlements, each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control Control shall be subject accomplished by the Debtors causing the securities intermediary maintaining such securities account or security entitlement to enter into an agreement (including an agreement to which the terms Priority Lien Collateral Agent and conditions the Third Lien Collateral Agent are also parties) (i) pursuant to which the securities intermediary shall agree to comply with Collateral Agent’s entitlement orders without further consent by such Debtor and (ii) which shall provide for activation of the Intercreditor Agreement and, in addition, that Lender shall not exercise such exclusive control unless only upon an Event of Default then existsDefault. With respect to any deposit account, each Debtor shall cause the depositary institution maintaining such account to enter into an agreement (including an agreement to which the Priority Lien Collateral Agent and the Third Lien Collateral Agent are also parties) (i) pursuant to which the depository institution shall agree to comply with Collateral Agent’s instructions with respect to disposition of each such Deposit Account (other than (a) Deposit Accounts constituting Excluded Property, (b) for a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, funds in its sole discretion), the accounts at each Existing Depositary Bank so long as the sweep instructions provided in Section 8.2.5 are being provided by the Borrowers and (c) for a period of sixty (60) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the deposit account maintained at JPMorgan Chase Bank, N.A., so long as without further consent by such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any Affiliate thereof). Each Borrower Debtor and (ii) which shall be the sole account holder provide for activation of each Deposit Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement) to have exclusive control over a Deposit Account or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items on behalf of the Borrowers and deposit such Payment Items into a Dominion Account of a Borrower. Each Borrower shall promptly notify Lender of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the Borrowers may maintain Securities Accounts with securities intermediates other than the Lender or an Affiliate of the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless only upon an Event of Default then exists) of each such Securities Account . Each Borrower shall be the sole account holder of each Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement)) to have control over a Securities Account or any Property deposited thereinDefault.
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Sources: Intercreditor Agreement (Midstates Petroleum Company, Inc.)
Deposit Accounts; Securities Accounts. 8.5.1 Schedule 8.5.1 sets With respect to any deposit accounts, securities accounts and security entitlements included in the Collateral, each Debtor shall ensure that the Collateral Agent has Control thereof, including that the Collateral Agent has Control of the securities accounts and deposit accounts set forth all Deposit Accounts maintained by Borrowers on Annex D , (i) in the case of the deposit accounts, securities accounts and securities entitlements of the Debtors as of the Closing Datedate hereof, including all Dominion Accountswithin 60 days after the date hereof (or as such period may be extended by the Credit Facility Agent but in no event later than 90 days after the date hereof) and (ii) in the case of the deposit accounts, securities accounts and securities entitlements of the Debtors established or acquired after the date hereof, within 45 days after the date on which such deposit accounts, securities accounts and security entitlements constitute Collateral (or as such period may be extended by the Credit Facility Agent but in no event later than 90 days after the date such deposit accounts, securities accounts and security entitlements constitute Collateral). Subject With respect to Section 10.1.11any securities accounts or securities entitlements, each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control Control shall be subject accomplished by the Debtors causing the securities intermediary maintaining such securities account or security entitlement to enter into an agreement (including an agreement to which the terms Priority Lien Collateral Agent and conditions the Second Lien Collateral Agent are also parties)
(i) pursuant to which the securities intermediary shall agree to comply with Collateral Agent’s entitlement orders without further consent by such Debtor and (ii) which shall provide for activation of the Intercreditor Agreement and, in addition, that Lender shall not exercise such exclusive control unless only upon an Event of Default then existsDefault. With respect to any deposit account, each Debtor shall cause the depositary institution maintaining such account to enter into an agreement (including an agreement to which
(i) pursuant to which the depository institution shall agree to comply with Collateral Agent’s instructions with respect to disposition of each such Deposit Account (other than (a) Deposit Accounts constituting Excluded Property, (b) for a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, funds in its sole discretion), the accounts at each Existing Depositary Bank so long as the sweep instructions provided in Section 8.2.5 are being provided by the Borrowers and (c) for a period of sixty (60) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the deposit account maintained at JPMorgan Chase Bank, N.A., so long as without further consent by such account is used solely to receive quarterly annuity payments from The Hartford Financial Services Group, Inc. or any Affiliate thereof). Each Borrower Debtor and (ii) which shall be the sole account holder provide for activation of each Deposit Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement) to have exclusive control over a Deposit Account or any Property deposited therein; provided that IMS, consistent with past practice, may receive certain Payment Items on behalf of the Borrowers and deposit such Payment Items into a Dominion Account of a Borrower. Each Borrower shall promptly notify Lender of any opening or closing of a Deposit Account and, with the consent of Lender, will amend Schedule 8.5 to reflect same.
8.5.2 The Borrowers shall, on a daily basis, instruct each of US Bank, National Association and BMO ▇▇▇▇▇▇ Bank (each, an “Existing Depositary Bank”) to transfer any and all amounts from each Borrower’s Deposit Accounts at such Existing Depositary Bank to a Dominion Account maintained at ABL Lender.
8.5.3 Schedule 8.5.3 sets forth all Securities Accounts maintained by Borrowers as of the Closing Date. For a period of ninety (90) days after the Closing Date (or such longer period as consented to by Lender, in its sole discretion), the Borrowers may maintain Securities Accounts with securities intermediates other than the Lender or an Affiliate of the Lender, but thereafter all Securities Accounts must be maintained with the Lender or an Affiliate of the Lender. Each Borrower shall take all actions necessary to establish Lender’s control (provided Lender agrees that such control shall be subject to the terms and conditions of the Intercreditor Agreement and, in addition, that Lender shall not exercise such control unless only upon an Event of Default then exists) of each such Securities Account . Each Borrower shall be the sole account holder of each Securities Account and shall not allow any other Person (other than Lender or ABL Lender, so long as subject to the Intercreditor Agreement)) to have control over a Securities Account or any Property deposited thereinDefault.
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Sources: Intercreditor Agreement (Midstates Petroleum Company, Inc.)