Control Agreements. (a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account. (b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account.
Appears in 4 contracts
Sources: Security Agreement (Intercept Pharmaceuticals, Inc.), Exchange Agreement (Intercept Pharmaceuticals, Inc.), Subscription Agreement (Intercept Pharmaceuticals, Inc.)
Control Agreements. (a) As (i) Enter into the Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the date hereofGuarantee and Collateral Agreement, no Pledgor has any Deposit Accounts(ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, Securities Accounts or Commodities Accounts other than (iii) enter into the accounts listed on Schedule 6Collateral Access Agreements required to be provided pursuant to Section 5.13 of the Guarantee and Collateral Agreement, (iii) open the Collection Account with the Administrative Agent and (iv) deliver to the Administrative Agent executed DDA Notifications (as defined in the Guarantee and Collateral Agreement) required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement. For all Deposit Accounts and Securities Accounts maintained In connection with the foregoing, the Borrower shall, if requested by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Administrative Agent, pursuant promptly deliver to which the applicable institution shall agree Administrative Agent a favorable written opinion (addressed to comply with the Collateral Agent’s instructions with respect Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect Administrative Agent and covering customary matters relating to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (control and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Accountaccess agreements.
(b) Within 90 days The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts (1other than (i) any Person becoming a Pledgor each deposit account, the funds in which are used, in the ordinary course of business, solely for the payment of salaries and wages, workers’ compensation, pension benefits and similar expenses or taxes related thereto, (ii) any Pledgor acquiring or opening any each deposit account used, in the ordinary course of business, solely for daily accounts payable and that has an ending daily balance of zero and (iii) each Deposit Account used in the ordinary course of business for local store accounts (which shall be governed by Section 6.4 of the Guarantee and Collateral Agreement)) not subject to Deposit Account Control Agreements or Securities Account other appropriate control agreements in favor of the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent at each time when the Borrower delivers Borrowing Base reports pursuant to Section 6.2(g), and if such aggregate balance under clause (other than the Excluded Accounts, collectivelyii) above shall at any time of determination exceed $1,000,000, the “New Blocked Accounts”)Borrower shall promptly eliminate such excess from such accounts or shall within 30 days enter, or cause the applicable Pledgor Loan Parties to enter, into one or more Deposit Account Control Agreements or other appropriate control agreements in favor of the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent so that there shall ensure not thereafter be any such excess; provided, however, that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within Borrower shall have 90 days after the Closing Date (or such later date of such Person becoming a Pledgor or as the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution Administrative Agent shall agree in its Permitted Discretion) to comply with the Collateral Agent’s instructions with respect to disposition of funds in obtain such Blocked Deposit Account without further consent by such Pledgor, Control Agreements or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has other appropriate control (within the meaning of the UCC) with respect to such accountagreements.
Appears in 4 contracts
Sources: Credit Agreement (NBC Acquisition Corp), Credit Agreement (Nebraska Book Co), Credit Agreement (Nebraska Book Co)
Control Agreements. (a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Commodity Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts, Securities Accounts and Securities Commodity Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts), collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), ) within 90 60 days after the date of this Agreement, Agreement with respect to any such Existing Blocked Account of the Issuer by causing the institution maintaining each such Existing Blocked Account to enter into a Control control agreement with the Collateral AgentAgent (“Control Agreement”), pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by the Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, instructions or agree to comply with the Collateral Agent’s Entitlement Orders entitlement orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement Agreement in response to reasonable comments from the Collateral AgentAgent (it being agreed by all parties that any comments related to ensuring that the Collateral Agent is not exposed to individual liability are reasonable), then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement Agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement Agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Commodity Account.
(b) Within 90 days of (1i) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account, Securities Account or Securities Commodity Account (other than the Excluded Accounts) (any accounts under the foregoing clauses (i) and(ii), collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement Control Agreement with the Collateral Agent, Agent pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, Pledgor or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement Agreement in response to reasonable comments from the Collateral AgentAgent (it being agreed by all parties that any comments related to ensuring that the Collateral Agent is not exposed to individual liability are reasonable), then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable appliable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement Agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for such Pledgor to cause the institution maintaining such account to enter into a Control agreement Agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new New Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account.
Appears in 2 contracts
Sources: Super Priority Security Agreement (Accelerate Diagnostics, Inc), Security Agreement (Accelerate Diagnostics, Inc)
Control Agreements. (aWithin the time periods set forth in Sections 8.18 and 8.19(a) As of the date hereofRevolving Credit Agreement and Sections 8.18 and 8.20(a) of the Term Loan Agreement, no Pledgor has any for each Deposit AccountsAccount, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts Account and Securities Accounts maintained by the Issuer as of the date hereof Commodity Account (other than Excluded Accounts) that such Grantor at any time maintains, collectivelysuch Grantor will, the “Existing Blocked Accounts”)at all times, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account pursuant to enter into a Control agreement with Agreement in form and substance satisfactory to the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining depository bank that maintains such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, the securities intermediary that maintains such Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure commodities intermediary that the Collateral Agent has Control with respect to any New Blocked Account of maintains such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Commodity Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply at any time (a) with entitlement orders from the Collateral Agent to such securities intermediary with regard to a Securities Account, (b) with instructions from the Collateral Agent to such depository bank, directing the disposition of funds from time to time in such Deposit Account, and (c) with directions of the Collateral Agent to such commodity intermediary for the application of value on account of commodity contracts carried in such Commodity Account, in each case without further consent of such Grantor and sufficient to grant the Collateral Agent with “control” within the meaning of Section 8-106 of the UCC, Section 9-104 of the UCC and Section 9-106 of the UCC, as applicable, and Grantor shall take such other action as the Collateral Agent may reasonably request or approve in order to perfect the Collateral Agent’s instructions with respect to disposition (on behalf of funds the Secured Parties) security interest in such Blocked Account without further consent by such PledgorDeposit Account, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Commodity Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii)including by control as aforesaid; provided that, such Grantor shall not cause or permit any Excluded Account to cease to constitute an “Excluded Account” (other than as a result of the extent it closing of such Excluded Account) unless such Deposit Account, Securities Account or Commodity Account, as applicable, is not practicable for subject to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days Agreement in favor of opening such account, such Pledgor shall ensure that the Collateral Agent has control in form and substance satisfactory to the Collateral Agent. Notwithstanding the foregoing or the terms of any Control Agreement, unless an Event of Default is continuing the Collateral Agent will not enforce the terms of any Control Agreement in order to take possession of, or prevent or limit the ability of any Grantor to direct the disposition of, the funds and other assets held in any Deposit Account, Securities Account or Commodity Account. The Borrower agrees to provide to the Collateral Agent each notice that the Borrower provides to the Revolving Administrative Agent (within at the meaning time such notice is provided to the Revolving Administrative Agent) regarding the opening of the UCC) with respect to such accounta Deposit Account, Securities Account or Commodity Account (other than an Excluded Account).
Appears in 2 contracts
Sources: Guaranty and Collateral Agreement, Guaranty and Collateral Agreement (Ultra Petroleum Corp)
Control Agreements. (aWithin the time period set forth in Section 11.2(c) As of the date hereofIndenture, no Pledgor has any for each Deposit AccountsAccount, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts Account and Securities Accounts maintained by the Issuer as of the date hereof Commodity Account (other than Excluded Accounts) that such Grantor at any time maintains, collectivelysuch Grantor will cause (or, at any time prior to the Discharge of Senior Obligations, while and to the extent an agreement granting “Existing Blocked Accounts”), control” to the Issuer shall ensure that the First Lien Collateral Agent has control (within the meaning of the UCC)over any such Deposit Account, within 90 days after the date of this AgreementSecurities Account or Commodity Account is in effect, by causing the institution maintaining each such Existing Blocked Account will make commercially reasonable efforts to enter into cause) at all times, pursuant to a Control agreement with Agreement in form satisfactory to the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in depository bank that maintains such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, the securities intermediary that maintains such Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure commodities intermediary that the Collateral Agent has Control with respect to any New Blocked Account of maintains such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Commodity Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply at any time (a) with entitlement orders from the Collateral Agent to such securities intermediary with regard to a Securities Account, (b) with instructions from the Collateral Agent to such depository bank, directing the disposition of funds from time to time in such Deposit Account, and (c) with directions of the Collateral Agent to such commodity intermediary for the application of value on account of commodity contracts carried in such Commodity Account, in each case without further consent of such Grantor and sufficient to grant the Collateral Agent with “control” within the meaning of Section 8-106 of the UCC, Section 9-104 of the UCC and Section 9-106 of the UCC, as applicable, and Grantor shall take such other action as is necessary, or as the Collateral Agent may reasonably request, in order to perfect the Collateral Agent’s instructions with respect to disposition (on behalf of funds the Secured Parties) security interest in such Blocked Account without further consent by such PledgorDeposit Account, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Commodity Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii)including by control as aforesaid; provided that, such Grantor shall not cause or permit any Excluded Account to cease to constitute an “Excluded Account” (other than as a result of the extent it closing of such Excluded Account) unless such Deposit Account, Securities Account or Commodity Account, as applicable, is not practicable for subject to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days Agreement in favor of opening such account, such Pledgor shall ensure that the Collateral Agent has control in form satisfactory to the Collateral Agent. Notwithstanding the foregoing or the terms of any Control Agreement, unless an Event of Default is continuing the Collateral Agent will not enforce the terms of any Control Agreement in order to take possession of, or prevent or limit the ability of any Grantor to direct the disposition of, the funds and other assets held in any Deposit Account, Securities Account or Commodity Account. The Company agrees to provide to the Collateral Agent each notice that the Company provides to the First Lien Collateral Agent (within at the meaning time such notice is provided to the Revolving Administrative Agent) regarding the opening of a Deposit Account, Securities Account or Commodity Account (other than an Excluded Account). Notwithstanding the foregoing, it is understood and agreed that, if at any time the Senior Obligations are outstanding, (i) if a Control Agreement for a Deposit Account that would otherwise be subject to this Section 6.9 is reasonably acceptable to the First Lien Collateral Agent then it shall be deemed to be acceptable the Collateral Agent for purposes of complying with this Section 6.9 and (ii) if the Grantors shall have delivered a Control Agreement to the First Lien Collateral Agent for a Deposit Account that would otherwise be subject to this Section 6.9, the form of the UCCControl Agreement (subject to customary modification to reflect the Applicable Agent’s interest in such Deposit Accounts) delivered to the First Lien Collateral Agent shall be deemed acceptable to the Collateral Agent for purposes of complying with respect this Section 6.9; provided, however, that no Control Agreement shall be deemed to such accountbe acceptable to the Collateral Agent if it requires the Collateral Agent in its individual capacity to indemnify the commodity intermediary, banking institution or securities intermediary (as applicable).
Appears in 2 contracts
Sources: Second Lien Guaranty and Collateral Agreement (Ultra Petroleum Corp), Exchange Agreement (Ultra Petroleum Corp)
Control Agreements. (a) As of the date hereof, no Pledgor has any For all Deposit Accounts, Securities Accounts or Accounts, Commodities Accounts other than the and any similar accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) (within 60 days after the date of this Agreement (or such later date acceptable to the Controlling Party), within 90 ; provided that the Issuer shall use best efforts to ensure that the Collateral Agent has control with 30 days after the date of this Agreement, ) with respect to any such Existing Blocked Account of the Issuer by causing the institution maintaining each such Existing Blocked Account account to enter into a Control agreement with in form and substance reasonably satisfactory to the Collateral AgentControlling Party, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Controlling Party and the Collateral Agent, then the Issuer shall promptly (and in any event within 90 60 days after notice from the Collateral AgentControlling Party (or such later date acceptable to the Controlling Party)) close the applicable respective Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 60 days (or such later date acceptable to the Controlling Party) of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) (within 60 days after the date of this Agreement (or such later date acceptable to the Controlling Party)) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of On and after the date hereof:
(1i) no Note Party shall open Deposit Accounts, Securities Accounts, Commodities Accounts and any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account similar accounts (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), unless a Control agreement, in accordance with the terms of Section 2.3(a), in respect of such New Blocked Account is entered into prior to, or simultaneously with, the opening or acquisition of such New Blocked Account; and
(ii) within 60 days (or such later date acceptable to the Controlling Party) of acquiring Deposit Accounts, Securities Accounts, Commodities Accounts and any similar accounts pursuant to an acquisition permitted under the Notes Documents (other than the Excluded Accounts, collectively, the “Acquired Blocked Accounts”), each applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Acquired Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, account to enter into a control Control agreement with in form and substance reasonably satisfactory to the Collateral AgentControlling Party, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New an Acquired Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Controlling Agent and the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 60 days after notice from the Collateral AgentControlling Party (or such later date acceptable to the Controlling Party)) close the applicable New respective Acquired Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 60 days (or such later date acceptable to the Controlling Party) of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account.
Appears in 2 contracts
Sources: Security Agreement (Orexigen Therapeutics, Inc.), Security Agreement (Orexigen Therapeutics, Inc.)
Control Agreements. (a) As of If the date hereof, no Pledgor has Grantor shall now or hereafter have rights in any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectivelywith any securities intermediary, the “Existing Blocked Accounts”), the Issuer Grantor shall ensure that immediately notify the Collateral Agent has control (within and, if such Securities Accounts have an aggregate value in excess of $500,000, at the meaning of Collateral Agent’s request and option, cause the UCC), within 90 days after the date of this Agreement, by causing the institution securities intermediaries maintaining each such Existing Blocked Account accounts to enter into a Control agreement with one or more control agreements in form and substance reasonably satisfactory to the Collateral Agent, pursuant to Agent under which the applicable institution shall they agree to comply with entitlement orders or other instructions originated by the Collateral Agent to such securities intermediary as to the securities or other financial assets contained therein without consent from the Grantor, but only to the extent required so that no more than $500,000 of assets maintained in such accounts are not subject to such control agreements.
(b) If the Grantor shall now or hereafter have rights in any Deposit Accounts maintained with any bank, the Grantor shall immediately notify the Collateral Agent thereof and, if such Deposit Accounts contains funds in the aggregate in excess of $500,000, at the Collateral Agent’s request and option, cause such banks to enter into one or more control agreements in form and substance reasonably satisfactory to the Collateral Agent under which they agree to comply with instructions with respect to such bank originated by the Collateral Agent directing the disposition of funds in such Existing Blocked Account Deposit Accounts without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral AgentGrantor, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, but only to the extent it is required so that no more than $500,000 of deposits in such accounts are not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior subject to such transfer, Section 2.3(b)(icontrol agreements.
(c) shall not apply to The Collateral Agent agrees with the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure Grantor that the Collateral Agent has control shall not give any such entitlement orders, instructions or directions referred to in paragraph (within the meaning of the UCCa) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect above to any New Blocked Account securities intermediaries or banks, unless an Event of Default has occurred and is continuing, or, after giving effect to any such Pledgor by causing the institution maintaining such accountinvestment and withdrawal rights, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountwould occur.
Appears in 2 contracts
Sources: Security Agreement (GMX Resources Inc), Security Agreement (GMX Resources Inc)
Control Agreements. (a) As of Each 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, no Pledgor has establish or maintain any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as 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 hereof, each Debtor shall cause each deposit account (other than Excluded Deposit Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after ) held or maintained by such Debtor on the date hereof to be subject to a Deposit Account Control Agreement duly executed by such Debtor and the bank at which such deposit account is maintained and delivered to Agent.
(b) All income earned or proceeds received by any Debtor and any direct or indirect Domestic Subsidiary thereof during the term of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution Agreement shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall be deposited promptly upon (and in any event within 90 days after notice from one Business Day of) receipt thereof by such Debtor in a deposit account that is subject to a fully executed Deposit Account Control Agreement, except for such income earned or proceeds permitted to be deposited in an Excluded Deposit Account or the Collateral Agent) close Frost Bank Excluded Account in accordance with this Agreement . Each Debtor shall take all steps to ensure that all 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 applicable Existing Blocked term “Excluded Deposit Account” means any deposit account established and used exclusively for payroll, transfer payroll taxes and similar employment taxes or other employee wage and benefit payments in the ordinary course of business to or for the benefit of 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 balances therein to another Blocked Account meeting of the requirements 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 Section 2.3Agreement (i) each Excluded Deposit Account shall at all times be used exclusively for payroll, and, if practicable, prior payroll taxes and similar employment taxes or other employee wage and benefit payments in the ordinary course of business to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable or for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transferbenefit of any Debtor’s employees, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) such Debtor will not make or cause any Pledgor acquiring of its direct or opening indirect subsidiaries to make any deposits in any Excluded Deposit Account or Securities Account (other than those necessary to fund payroll, payroll taxes and similar employment taxes or other employee wage and benefit payments in the Excluded Accounts, collectivelyordinary course of business to or for the benefit of any Debtor’s employees. As used herein, the term “New Blocked Accounts”), Frost Bank Excluded Account” means the applicable Pledgor shall ensure deposit account maintained by Nauticus Sub with Frost Bank (Acct No. 00001007) with a CD securing obligations under corporate credit cards and listed in Schedule III-3 hereto. Each Debtor covenants and agrees that during the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements term of this Section 2.3, and, if practicable, prior to such transfer, cause Agreement the institution maintaining such account to enter into a Control agreement aggregate amount of deposits contained in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) Frost Bank Excluded Account shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountexceed $750,000 at any time.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Nauticus Robotics, Inc.), Pledge and Security Agreement (Nauticus Robotics, Inc.)
Control Agreements. (a) As Within five (5) Business Days of the date hereofFourth Amendment Effective Date, no Pledgor has the Borrower shall deliver to the Administrative Agent a schedule setting forth each Deposit Account, securities account, and commodities account (including any Deposit Excluded Accounts) of each Loan Party existing as of the Fourth Amendment Effective Date and identifying the status of each such account as an Excluded Account or not an Excluded Account, Securities Accounts or Commodities Accounts other than certified by a Responsible Officer of the accounts listed on Schedule 6. For all Deposit Accounts Borrower as being true, accurate, and Securities Accounts maintained by the Issuer complete as of the date hereof of such delivery and confirming that no additional Deposit Account(s), securities account(s), or commodities account(s) have been opened since the Fourth Amendment Effective Date.
(b) With respect to each Deposit Account, securities account, and commodities account (other than Excluded Accounts) of each Loan Party existing as of the schedule delivered pursuant to Section 5.18(a), collectivelyand notwithstanding anything to the contrary in any Loan Document, the “Existing Blocked Accounts”Borrower shall within sixty (60) days of the Fourth Amendment Effective Date (which date may be extended by the LCA Collateral Agent in its sole discretion), deliver a Control Agreement to the Issuer shall ensure that Controlling Authorized Representative for each such Deposit Account, securities account, and commodities account (other than Excluded Accounts ) of each Loan Party, in each case, in form and substance reasonably satisfactory to the LCA Collateral Agent. Subject to the first sentence of this Section 5.18(b), and notwithstanding anything to the contrary in any Loan Document, at all times, each Deposit Account, securities account, and commodities account (other than Excluded Accounts) established and/or maintained by each Loan Party must be subject to a Control Agreement except as otherwise agreed by the LCA Collateral Agent has control in its reasonable discretion.
(within c) The Borrower and each other Loan Party hereby grants a security interest to the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the LCA Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning benefit of the UCC) with respect to such account. Notwithstanding anything else contained hereinSecured Parties, no institution shall be required to subordinate its security interest in a all any cash or Cash Equivalents, Deposit Account, Securities Account, commodities account or Commodities Account.
securities account (b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”including securities entitlements and related assets), to secure the applicable Pledgor Obligations, and the foregoing shall ensure that constitute Collateral, notwithstanding anything to the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and contrary in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountLoan Document.
Appears in 2 contracts
Sources: Ninth Amendment Agreement (New Fortress Energy Inc.), Letter of Credit and Reimbursement Agreement (New Fortress Energy Inc.)
Control Agreements. With respect to any Mortgage Asset or collateral for a Mortgage Asset that is an uncertificated security (a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of defined in the UCC), within 90 days after securities entitlement (as defined in the date of this UCC) or is held in a securities account (as defined in the UCC), the Borrower shall provide to the Administrative Agent a control agreement, which shall be acceptable to the Administrative Agent in its discretion and shall be delivered to the Custodian under the Custodial Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent executed by the Issuerissuer of the Mortgage Asset or the collateral for the Mortgage Asset or the related securities intermediary (as defined in the UCC), as applicable, granting control (as defined in the UCC) of such Mortgage Asset or agree collateral for such Mortgage Asset to comply with the Collateral Agent’s Entitlement Orders with respect Administrative Agent and providing that, after an Event of Default, the Administrative agent shall be entitled to such Securities Account without further consent by notify the Issuerissuer or securities intermediary, as applicable. If any institution , that such issuer or securities intermediary shall comply exclusively with which an Existing Blocked Account is maintained refuses tothe instructions or entitlement orders (as defined in the UCC), or does notas applicable, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained hereinAdministrative Agent without the consent of the Borrower or any other Person and no longer follow the instructions or entitlement orders, no institution shall be required to subordinate its security interest in a Deposit Accountas applicable, Securities Account, of the Borrower or Commodities Account.
(b) Within 90 days of (1) any other Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded AccountsAdministrative Agent). All of the Borrowers’ right, collectivelytitle 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 of all transfer documents to be completed by the Administrative Agent as agent for the Lenders and executed copies of any transfer documents to be completed by the applicable Borrower, in either case in blank, but in form sufficient to allow transfer and registration of such Mortgage Assets to the “New Blocked Accounts”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 Pledgor shall ensure that the Collateral Agent has Control with Borrower, in blank. With respect to any New Blocked Account of such Pledgor by causing Mortgage Assets that shall be delivered through the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor DTC or the opening National Book Entry System of such New Blocked Accountthe Federal Reserve or any similar firm or agency, as applicable, in book–entry form and credited to enter into a control agreement with or otherwise held in an account, the Collateral Agent, pursuant Borrowers shall take such actions necessary to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, provide instruction to the extent it is not practicable for relevant financial institution, clearing corporation, securities intermediary or other entity to cause effect and perfect a legally valid delivery of the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply relevant interest granted herein to the new Blocked Account being opened 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 within 90 days of opening such account, such Pledgor shall ensure that held in the Collateral Agent has control (within the meaning name of the UCC) with respect to such accountAdministrative 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. (a) As If a Cash Dominion Period commences, the Loan Parties, promptly upon the request of the date hereofAdministrative Agent, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than shall deliver to the accounts listed on Schedule 6. For Administrative Agent a schedule of all Deposit Accounts and Securities Accounts that are maintained by the Issuer as of the date hereof (other than Excluded AccountsLoan Parties, collectivelywhich Schedule shall include, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition each depository, (i) the name and address of funds in such Existing Blocked Account without further consent by Issuer or agree to comply depository, (ii) the account number(s) maintained with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuerdepository, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to and (iii) a contact person at such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Accountdepository.
(b) Within 90 days of after the Effective Date (1or such later date as the Administrative Agent may reasonably agree in its sole discretion), each Loan Party shall have entered into a Control Agreement, in form and substance reasonably satisfactory to the Administrative Agent, with the bank which maintains Parent Borrower’s main concentration account (the “Concentration Account”) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any and with each bank with which such Loan Party maintains each other Deposit Account or Securities Account described on Schedule 5.16 (the Concentration Account and each other account subject to a Control Agreement, a “Control Account”) and shall at all times thereafter cause all such accounts to be maintained as Control Accounts. At all times during the continuance of a Cash Dominion Period, (i) unless the Administrative Agent has given contrary instructions to the applicable bank or financial institution pursuant to the applicable Control Agreement, the Loan Parties shall cause all proceeds of Collateral received in accounts of the stores that are not Control Accounts, and all other amounts otherwise constituting or received in respect of proceeds of Collateral in Control Accounts other than the Concentration Account to be transferred to the Concentration Account within not more than 3 Business Days of receipt in such Control Accounts and (ii) the Loan Parties shall cause all proceeds of Collateral received in accounts of the stores that are not Control Accounts, and all other amounts otherwise constituting or received in respect of any Collateral that are received in accounts that are not Control Accounts, to be transferred from such non-controlled accounts to Control Accounts as soon as practicable following receipt; provided that this sentence shall not apply to any Excluded Accounts. Promptly following the commencement of any Cash Dominion Period, each Loan Party shall give notice satisfactory to the Administrative Agent to each credit card processor that processes its credit card receivables to require it to make daily transfers of the payments due from such processor to a Control Account specified by the Administrative Agent.
(c) Subject to the time periods specified in Section 5.16(b), during the continuance of a Cash Dominion Period, unless the Administrative Agent has given contrary instructions to the applicable bank or financial institution pursuant to the applicable Control Agreement, the Loan Parties shall cause the wire transfer on each Business Day (whether or not there are at the time outstanding Loans) of all available cash receipts to the Concentration Account, from:
(i) the sale of Inventory;
(ii) all proceeds of collections of Accounts (including in respect of credit card receivables, whether or not constituting Eligible Credit Card Receivables); and
(iii) each Control Account (including all cash deposited therein from each Deposit Account and each Securities Account).
(d) If, at any time during the continuance of a Cash Dominion Period, any cash or cash equivalents owned by any Loan Party (other than the amounts contained in Excluded Accounts) are deposited to any account, collectivelyor held or invested in any manner, the “New Blocked Accounts”)otherwise than in a Control Account, the applicable Pledgor Loan Party shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining close such account, within 90 days after as soon as practicable following the occurrence of a Cash Dominion Period, and have all funds therein and all future deposits thereto transferred to a Control Account. If on any date (i) Availability shall be less than 25% of such Person becoming a Pledgor the Line Cap or (ii) the opening Revolving Credit Exposure (not including any LC Exposure) shall exceed 50% of such New Blocked Accountthe Line Cap, as applicable, to then (A) each Loan Party shall promptly enter into a control agreement with an amendment to the Collateral Agent, Agreement satisfactory to the Administrative Agent pursuant to which such Loan Party shall, for the benefit of the Secured Parties g▇▇▇▇ ▇ ▇▇▇▇ on all its Securities Accounts which prior to such amendment shall have been excluded from the Lien of the Collateral Agreement and (B) the Loan Parties shall within 30 days after such date (or such later date as the Administrative Agent may reasonably agree in its sole discretion) enter into Control Agreements, in form and substance reasonably satisfactory to the Administrative Agent, with the applicable institution securities intermediaries in respect of such Securities Accounts as shall agree be required so that after giving effect thereto all cash or cash equivalents owned by the Loan Parties (other than amounts contained in Excluded Accounts) shall be held in Control Accounts and shall at all times thereafter cause all such accounts to comply be maintained as Control Accounts.
(e) The Loan Parties may close Deposit Accounts, Securities Accounts or Control Accounts and/or open new Deposit Accounts, Securities Accounts or Control Accounts, subject to the execution and delivery to the Administrative Agent of appropriate Control Agreements consistent with the provisions of this Section 5.16 and otherwise reasonably satisfactory to the Administrative Agent. The Loan Parties shall furnish the Administrative Agent with prior written notice of their intention to open or close a Control Account and the Administrative Agent shall promptly notify the Parent Borrower as to whether the Administrative Agent shall require a Control Agreement with the Person with whom such account will be maintained.
(f) Each of Holdings and the Parent Borrower hereby acknowledges and agrees on behalf of itself and each other Loan Party that (i) the funds on deposit in the Concentration Account shall at all times continue to be collateral security for all of the Obligations and (ii) during a Cash Dominion Period, such Loan Party shall have no right of withdrawal from the Concentration Account and the funds on deposit in the Concentration Account shall be applied as provided in this Agreement and the Collateral Agreement. In the event that any Loan Party receives or otherwise has dominion and control of any such proceeds or collections in contravention of the provisions of this Section 5.16, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s instructions other funds or deposited in any account of such Loan Party and shall promptly be deposited into the Concentration Account or dealt with respect to disposition of funds in such Blocked other fashion as such Loan Party may be instructed by the Administrative Agent.
(g) Any amounts received in the Concentration Account without further consent by such Pledgor, at any time when all of the Obligations then due have been and remain fully repaid (and all deposits required to be made pursuant to Section 2.09(f) or agree 2.17(f) shall have been made) shall be remitted to comply the operating account of the Parent Borrower maintained with the Collateral Administrative Agent’s Entitlement Orders with respect to such Securities .
(h) The Administrative Agent shall not give any notice of exclusive control or similar notice for any Control Account without further consent by such Pledgor, as applicableunless a Cash Dominion Period has occurred and is continuing. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor The Administrative Agent shall promptly (and but in any event within 90 days after two Business Days) furnish written notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into each Person with whom a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it Account is not practicable for to cause the institution maintaining such account to enter into maintained of any termination of a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountCash Dominion Period.
Appears in 2 contracts
Sources: Credit Agreement (J C Penney Co Inc), Credit Agreement (J C Penney Co Inc)
Control Agreements. (aSubject to Section 8.17(b) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Credit Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a each Deposit Account, Securities Account and Commodity Account, or Commodities in each case, constituting Collateral (other than De Minimis Accounts and the Excluded Accounts), that the Grantor at any time maintains, the Grantor will, at the time of the opening of such Deposit Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit , Securities Account or Securities Commodity Account (other than De Minimis Accounts and the Excluded Accounts) or at the time such Deposit Account, collectivelySecurities Account or Commodity Account ceases to be a De Minimis Account or an Excluded Account, pursuant to a Control Agreement in form and substance reasonably satisfactory to the “New Blocked Accounts”)Administrative Agent, cause the applicable Pledgor shall ensure depository bank that the Collateral Agent has Control with respect to any New Blocked Account of maintains such Pledgor by causing the institution maintaining Deposit Account, securities intermediary that maintains such accountSecurities Account, within 90 days after the date of or commodities intermediary that maintains such Person becoming a Pledgor or the opening of such New Blocked Commodity Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall 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 has occurred and is continuing, the Administrative Agent agrees with the Collateral Agent’s instructions with respect Grantor that the Administrative Agent shall not give any instructions, directions or Entitlement Orders, as applicable, directing the disposition of funds, Financial Assets or Commodity Contracts, as applicable, from time to time credited to or carried in any Deposit Account, Securities Account or Commodity Account subject, in each case, to a Control Agreement (other than a notice by the Administrative Agent that its activation of sole control has ceased and that the Grantor shall be entitled once again to control and direct the disposition of funds in such Blocked Account without further consent account until future notice by the Administrative Agent pursuant to the provision of such PledgorControl Agreement), and shall not withhold any withdrawal rights or agree to comply with dealing rights from the Collateral Agent’s Entitlement Orders Grantor with respect to such Securities Account without further consent by such Pledgorany funds, Financial Assets or Commodity Contracts, as applicable. If , from time to time credited to or carried in any institution with which a New Blocked Deposit Account, Securities Account is maintained refuses toor Commodity Account subject, or does notin each case, enter into to a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountAgreement.
Appears in 1 contract
Sources: Credit Agreement (Energen Corp)
Control Agreements. (a) As Within one hundred and twenty (120) days (or, in each case, such longer period as the Administrative Agent may agree (such consent not to be unreasonably withheld, delayed or conditioned)) following the later of (x) the Closing Date and (y) the date of the date hereofestablishment of each deposit account that is not an Excluded Account or a Specified Money Market Account, no Pledgor has any Deposit Accountsthe Borrower and each Guarantor (if applicable) shall enter into customary springing account control agreements (including, Securities Accounts for greater clarity, blocked account agreements) in form and substance reasonably satisfactory to the Borrower and the Administrative Agent (each, a “Control Agreement”) or Commodities Accounts other than otherwise cause the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by security interests granted to the Issuer as Administrative Agent (for the benefit of the date hereof Secured Parties) in each of the deposit accounts (other than Excluded Accounts, collectively, Accounts or a Specified Money Market Account) owned by the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning Borrower or any of the UCC), within 90 days after relevant Guarantors to be perfected by “control” as defined in the date of this Agreement, by causing UCC (or equivalent) or otherwise provide the institution maintaining each such Existing Blocked Account to enter into a Control agreement Administrative Agent with the Collateral ability to exercise control over any such deposit account, in each case, in form and substance reasonably satisfactory to the Borrower and the Administrative Agent.; provided that notwithstanding anything to the contrary in the foregoing, pursuant Loan Parties organized outside of the United States shall be subject to which equivalent requirements (if any) as set forth in this Section 5.15(a) in the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent jurisdictions as reasonably requested by the Issuer, as applicable, or agree to comply with the Collateral Administrative Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days At any time after the occurrence and during the continuance of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectivelyan Event of Default, the Administrative Agent shall have the right to deliver a Notice of Exclusive Control (or similar term, as defined in each Control Agreement) with respect to each deposit account that is subject to a Control Agreement (each, a “New Blocked AccountsControlled Account”), .
(c) The Borrower and its Subsidiaries (x) may close and/or open any account maintained at any bank or other financial institution subject to the applicable Pledgor requirements of this Section 5.15 and (y) so long as no Event of Default has occurred and is continuing, shall ensure have full and complete access to, and may direct, and shall have sole control over all accounts and may direct the manner of disposition of funds in all Controlled Accounts.
(d) Notwithstanding anything herein to the contrary, it is understood and agreed that the Collateral Agent has no Control Agreement or other control agreements shall be required with respect to any New Blocked Excluded Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked any Specified Money Market Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account.
Appears in 1 contract
Control Agreements. Within forty-five (a45) As days after the Effective Date, the applicable Obligors shall deliver to Collateral Agent one or more Control Agreements in respect of the date hereof, no Pledgor has any each Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts Account and Securities Accounts Account maintained by the Issuer such Obligors which are not, as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing subject to the institution maintaining each such Existing Blocked Custody Account to enter into a Control agreement Agreement or maintained with the Collateral Agent, pursuant to which the applicable institution shall agree to comply together with the Collateral Agent’s instructions with respect to disposition a favorable opinion of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders counsel with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a)Agreement; provided that, to that the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) Obligors shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, deliver any Control Agreement for any Excluded Account or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account if the aggregate value of all such assets (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that are not either maintained with the Collateral Agent or subject to a Control Agreement) would not be greater than $2,500,000 in the aggregate; provided further, for the avoidance of doubt, any Cash or other 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 Control with respect 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 any New Blocked Account the extent not prohibited by this Agreement or the other Loan Documents; provided, however, that if (a) the transfer of such Pledgor 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 causing the institution maintaining such accountan Obligor, within 90 days after the date and (x) are not subject to a Control Agreement in favor of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant (y) such Deposit Account or Securities Account is not an Excluded Account, and (z) after giving effect to which 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 aggregate, the Obligors shall not transfer such assets to such Deposit Account or Securities Account until such time as the applicable institution shall agree to comply with bank or securities intermediary executes a Control Agreement in favor of the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders Agent with respect to such Deposit Account or Securities Account without further consent by Account. The Obligors shall provide prior written notice to Collateral Agent in the event that the aggregate value of all assets held in such Pledgor, as applicable. If any institution Deposit Accounts or Securities Accounts (other than Deposit Accounts or Securities Accounts maintained with Collateral Agent or which a New Blocked Account is maintained refuses to, or does not, enter into are subject to a Control agreement Agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from favor of the Collateral Agent) close exceeds or would exceed $2,500,000 in the applicable New Blocked Accountaggregate. 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, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within may notify any bank or securities intermediary to liquidate the meaning of applicable Deposit Account or Securities Account or any related Investment Property constituting Collateral maintained or held in such Securities Accounts and remit the UCC) with respect proceeds thereof to such accountthe Collateral Agent.
Appears in 1 contract
Sources: Guarantee and Security Agreement (Corporate Capital Trust, Inc.)
Control Agreements. With respect to any Mortgage Asset or collateral for a Mortgage Asset that is an uncertificated security (a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of defined in the UCC), within 90 days after security entitlements (as defined in the date of this UCC) or is held in a securities account (as defined in the UCC), the Borrower shall provide to the Administrative Agent a control agreement, which shall be acceptable to the Administrative Agent in its discretion and shall be delivered to the Custodian under the Custodial Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent executed by the Issuerissuer of the Mortgage Asset or the collateral for the Mortgage Asset or the related securities intermediary (as defined in the UCC), as applicable, granting control (as defined in the UCC) of such Mortgage Asset or agree collateral for such Mortgage Asset to comply with the Collateral Agent’s Entitlement Orders with respect Administrative Agent and providing that, after an Event of Default, the Administrative agent shall be entitled to such Securities Account without further consent by notify the Issuerissuer or securities intermediary, as applicable. If any institution , that such issuer or securities intermediary shall comply exclusively with which an Existing Blocked Account is maintained refuses tothe instructions or entitlement orders (as defined in the UCC), or does notas applicable, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained hereinAdministrative Agent without the consent of the Borrower or any other Person and no longer follow the instructions or entitlement orders, no institution shall be required to subordinate its security interest in a Deposit Accountas applicable, Securities Account, of the Borrower or Commodities Account.
(b) Within 90 days of (1) any other Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded AccountsAdministrative Agent). All of the Borrowers’ right, collectivelytitle and interest in the Mortgage Assets that constitute GKK CRE CDO 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 of all transfer documents to be completed by the Administrative Agent as agent for the Lenders and executed copies of any transfer documents to be completed by the applicable Borrower, in either case in blank, but in form sufficient to allow transfer and registration of such Mortgage Assets to the “New Blocked Accounts”Administrative Agent as agent for the Lenders no later than the proposed Borrowing Date for the relevant Mortgage Asset. 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 Pledgor shall ensure that the Collateral Agent has Control with Borrower, in blank. With respect to any New Blocked Account of such Pledgor by causing Mortgage Assets that shall be delivered through the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor DTC or the opening National Book Entry System of such New Blocked Accountthe Federal Reserve or any similar firm or agency, as applicable, in book–entry form and credited to enter into a control agreement with or otherwise held in an account, the Collateral Agent, pursuant Borrowers shall take such actions necessary to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, provide instruction to the extent it is not practicable for relevant financial institution, clearing corporation, securities intermediary or other entity to cause effect and perfect a legally valid delivery of the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply relevant interest granted herein to the new Blocked Account being opened 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 within 90 days of opening such account, such Pledgor shall ensure that held in the Collateral Agent has control (within the meaning name of the UCC) with respect to such accountAdministrative Agent as agent for the Lenders in the Securities Account.
Appears in 1 contract
Control Agreements. (a) As On or prior to the Effective Date, UP Offshore Bahamas and Holdings shall have (i) executed and delivered (and shall have caused each of their subsidiaries with a Deposit Account to have executed and delivered) to the date hereofCommon Security Agent, no Pledgor has any New Transaction Security relating to each Deposit AccountsAccount and control agreements or instruments of equivalent effect in each non-U.S. jurisdiction in form and substance satisfactory to the Administrative Agent (each, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer a "Control Agreement") which Control Agreements shall ensure that the Collateral Agent has control establish "control" (within the meaning of the UCC), UCC or other relevant law) or perfection of the underlying security interest (in the case of each non-U.S. jurisdiction) and shall be in form and substance reasonably 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 90 30 days after the Effective Date (which date may be extended by up to 30 days in the reasonable discretion of this Agreementthe Common Agent or such longer period as may be reasonably acceptable to the Required Lenders (as defined below)), by causing the Offshore Entities will move the applicable Deposit Account from such financial institution maintaining each such Existing Blocked Account to enter into the Common Agent or another financial institution reasonably acceptable to the Common Agent which will execute a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(aAgreement); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days At all times on and after the Effective Date, each Deposit Account shall be (i) maintained in the name of (1) any Person becoming a Pledgor or an Obligor, (ii) located at one of the Agents, the Common Security Agent or at another financial institution reasonably acceptable to the Administrative Agent, (iii) located in the United States, Brazil and any Pledgor acquiring other jurisdiction reasonably acceptable to the Administrative Agent and (iv) subject to a 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. 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 opening the Existing Guarantee Facility Agreement, each of the Parties agrees that such security interests shall be released and 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 except as otherwise expressly permitted or Securities Account provided for in this Agreement.
(d) 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 Excluded AccountsCurrent 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 any Deposit Accounts maintained by the Offshore Entities are denominated in any currency other than reais, collectivelyU.S. dollars, or any other currency reasonably agreed by the Administrative Agent (i) prior to the Effective Date, any remaining amounts in excess of the equivalent in such currencies of $1,000,000 in such accounts shall be transferred into a U.S. dollar-denominated Current Account or the Minimum Liquidity Account (after conversion of such deposits to U.S. dollars at the FX Spot Rate) and (ii) after the Effective Date, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account average daily balance in all such accounts of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) other currencies shall not apply to exceed $1,000,000 in the new Blocked Account being opened and within 90 days of opening aggregate for all such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountCurrent Accounts.
Appears in 1 contract
Control Agreements. The following additional provisions pertaining to the Intermediary do not limit any of Secured Party's rights or powers under other provisions hereof:
(a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that agrees to cause Intermediary to hold the Collateral Agent has control (within for Secured Party. Pledgor agrees to execute and deliver, and cause the meaning of the UCC)Intermediary to execute and deliver, within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into Secured Party a Control agreement with Agreement in the form supplied by or otherwise acceptable to Secured Party (the "Control Agreement") as to any Collateral Agent, pursuant consisting of a Securities Account or specified securities therein. Pledgor agrees to which the applicable institution shall agree cause Intermediary to comply with its agreements and obligations under the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the IssuerControl Agreement. The Control Agreement shall constitute an agreement among Pledgor, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (Intermediary and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities AccountSecured Party.
(b) Within 90 days of (1) any Person becoming a Pledgor Except as otherwise specified herein or (ii) any Pledgor acquiring in the Control Agreement, Intermediary shall act or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control not act with respect to the Collateral solely in accord with entitlement orders and instructions (including instructions to sell or otherwise dispose of any New Blocked Account Collateral and to deliver any Collateral to Secured Party) given from time to time by Secured Party. Secured Party may exercise any rights and powers hereunder or under the Control Agreement without the consent of such Pledgor.
(c) Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Accounthereby directs and authorizes Intermediary, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions agent with respect to disposition a Securities Account or specified securities in a Securities Account, to effect additions, replacements and substitutions of funds Collateral on behalf of Pledgor. Without limiting any other provision hereof, all such additions, replacements and substitutions shall be conclusively deemed to be "Collateral" hereunder, and Pledgor shall be deemed to have granted a security interest in such Blocked Account items and assigned such items to Secured Party, as more fully provided above. All additions, substitutions and replacements shall be satisfactory to Secured Party in its sole discretion, and (without further consent by such Pledgorlimiting any other provision hereof or of any Control Agreement) if Secured Party so requests no addition, substitution or agree to comply replacement may be made except with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further prior consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountSecured Party.
Appears in 1 contract
Control Agreements. (a) As Borrower agrees that it will not, and will not permit its Subsidiaries to, transfer assets out of any of their Deposit Accounts (other than as specified in Section 2.7 with respect to Cash Management Accounts) or Securities Accounts; provided, however, that so long as no Event of Default has occurred and is continuing or would result therefrom, Borrower and its Subsidiaries may use such assets (and the date proceeds thereof) to the extent not prohibited by this Agreement or the other Loan Documents and, if the transfer is to another bank or securities intermediary, so long as Borrower (or its Subsidiary, as applicable), Agent, and the substitute bank or securities intermediary have entered into a Control Agreement (subject to Section 7.12 hereof, no Pledgor has ). No arrangement contemplated hereby or by any Deposit Accounts, Control Agreement in respect of any Securities Accounts or Commodities Accounts other than Investment Property shall be modified by Borrower without the accounts listed on Schedule 6prior written consent of Agent. For all Upon the occurrence and during the continuance of an Event of Default, Agent may notify any bank or securities intermediary to liquidate the applicable Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof Account (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, including pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC2.7(c) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required Cash Management Accounts) or Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to subordinate its security interest in a Deposit Account, Securities Account, the Agent's Account or Commodities Accountas otherwise directed by Agent.
(b) Within 90 days of Borrower agrees that, subject to Section 2.7 (1with respect to Cash Management Accounts) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any and Section 7.12 with respect to all other Deposit Account or Accounts and Securities Account (other than the Excluded Accounts, collectivelyit will and will cause its Subsidiaries to take any or all reasonable steps that Agent requests in order for Agent to obtain control in accordance with Sections 9-104, 9-105, 9-106, and 9-107 of the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control Code with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account(i) its or their Securities Accounts, within 90 days after the date of such Person becoming Deposit Accounts, electronic chattel paper, Investment Property, and (ii) only during a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral AgentTriggering Period, pursuant to which the applicable institution any such reasonable (in Agent's Permitted Discretion) request, its or their letter-of-credit rights; provided, however, that Borrower shall agree not be so required to comply with the Collateral Agent’s instructions cause Agent to obtain such control with respect to disposition of funds in such Blocked the Special Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such and Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountInvestments.
Appears in 1 contract
Control Agreements. (ai) As of the date hereof, no Pledgor Grantor has any Deposit Accounts, Accounts or Securities Accounts or Commodities Accounts that constitutes Collateral other than the accounts listed on in Schedule 6. For all 7 to this Agreement.
(ii) No Grantor shall maintain any Deposit Accounts Account that constitutes Collateral unless the bank where such Deposit Account is maintained and Securities Accounts maintained by such Grantor shall have duly executed and delivered to (A) in the Issuer as case of any Deposit Account constituting ABL Priority Collateral, prior to the date hereof (other than Excluded Accounts, collectivelyDischarge of ABL Obligations, the “Existing Blocked Accounts”)ABL Agent (as such term is defined in the Intercreditor Agreement) or, thereafter, the Issuer shall ensure that Agent or (B) in the Collateral Agent has case of any Deposit Account not constituting ABL Priority Collateral, the Agent, in each case a control agreement with respect to such Deposit Account granting “control” (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each ) over such Existing Blocked Deposit Account to enter into a Control agreement with the Collateral Agent or ABL Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, prior to the extent it Discharge of ABL Obligations no Grantor shall be required to grant “control” over any such Deposit Account constituting ABL Priority Collateral if such Grantor is not practicable for required to grant such “control” to the Issuer ABL Agent. To the extent that a Grantor is required pursuant to cause the institution maintaining such account first sentence of this Section 6(c)(ii) to enter into a Control agreement grant “control” over any Deposit Account prior to the Discharge of ABL Obligations, such transfer, Section 2.3(b)(i) requirements shall not apply be deemed satisfied with respect to any Deposit Account constituting ABL Priority Collateral so long as the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral ABL Agent has is a party to a control agreement granting “control” (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained hereinDeposit Account to the ABL Agent; provided that upon the Discharge of ABL Obligations each Grantor shall cooperate with the ABL Agent, no institution shall be required Agent and each bank to subordinate its security interest in have each control agreement assigned to Agent or replaced with a Deposit Account, Securities Account, or Commodities Accountsubstantially similar agreement.
(biii) Within 90 days No Grantor shall maintain any Securities Account that constitutes Collateral unless the securities intermediary or commodities intermediary where such Securities Account is maintained and such Grantor shall have duly executed and delivered to (A) in the case of any Securities Account constituting ABL Priority Collateral, prior to the Discharge of ABL Obligations, the ABL Agent (1as such term is defined in the Intercreditor Agreement) any Person becoming a Pledgor or, thereafter, the Agent or (iiB) in the case of any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectivelynot constituting ABL Priority Collateral, the “New Blocked Accounts”)Agent, the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into in each case a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by granting “control” (within the meaning of the UCC) over such PledgorSecurities Account to the Agent or ABL Agent, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, prior to the extent it Discharge of ABL Obligations, no Grantor shall be required to grant “control” over any such Securities Account constituting ABL Priority Collateral if such Grantor is not practicable for required to cause grant such “control” to the institution maintaining such account ABL Agent. To the extent that a Grantor is required pursuant to enter into a Control agreement the first sentence of this Section 6(c)(iii) to grant “control” over any Securities Account prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days Discharge of opening such accountABL Obligations, such Pledgor requirements shall ensure that be deemed satisfied with respect to any Securities Account constituting ABL Priority Collateral so long as the Collateral ABL Agent has is a party to a control agreement granting “control” (within the meaning of the UCC) with respect to such accountSecurities Account to the ABL Agent; provided that upon the Discharge of ABL Obligations each Grantor shall cooperate with the ABL Agent, Agent and each securities and commodities intermediary to have each control agreement assigned to Agent or replaced with a substantially similar agreement.
Appears in 1 contract
Control Agreements. (aSubject to Section 8.17(b) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Credit Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a each Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities and Commodity Account (other than De Minimis Accounts and the Excluded Accounts) that such Grantor at any time maintains, collectivelysuch Grantor will, at the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account time of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Deposit Account, Securities Account or Commodity Account (other than De Minimis Accounts and the Excluded Accounts) or at the time such Deposit Account, Securities Account or Commodity Account ceases to be a De Minimis Account or an Excluded Account, pursuant to a Control Agreement in form and substance reasonably satisfactory to the Administrative 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 enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply at any time with instructions from the Collateral 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, or take such other action as the Administrative Agent may reasonably request in order to perfect the Administrative Agent’s instructions 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 has occurred and is continuing, the Administrative Agent agrees with respect each Grantor that the Administrative Agent shall not give any instructions, directions or Entitlement Orders, as applicable, directing the disposition of funds, Financial Assets or Commodity Contracts, as applicable, from time to time credited to or carried in any Deposit Account, Securities Account or Commodity Account subject, in each case, to a Control Agreement (other than a notice by the Administrative Agent that its activation of sole control has ceased and that such Grantor shall be entitled once again to control and direct the disposition of funds in such Blocked Account without further consent account until future notice by the Administrative Agent pursuant to the provision of such PledgorControl Agreement), and shall not withhold any withdrawal rights or agree to comply with the Collateral Agent’s Entitlement Orders dealing rights from such Grantor with respect to such Securities Account without further consent by such Pledgorany funds, Financial Assets or Commodity Contracts, as applicable. If , from time to time credited to or carried in any institution with which a New Blocked Deposit Account, Securities Account is maintained refuses toor Commodity Account subject, or does notin each case, enter into to a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountAgreement.
Appears in 1 contract
Sources: Credit Agreement (Energen Corp)
Control Agreements. (a) As Obligors agree that they will not transfer assets out of any of their Deposit Accounts or Securities Accounts; provided, however, that (i) any Obligor may make any such transfer if immediately thereafter, the Obligors are in compliance with Section 2.7(b) and (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, Obligors may use such assets (and the proceeds thereof) to the extent not prohibited by this Agreement or the other Financing Documents and, if the transfer is to another bank or securities intermediary and made after the Discharge of Credit Obligations (unless otherwise permitted under Section 2.7(b)), so long as the applicable Obligor, Trustee, and the substitute bank or securities intermediary have entered into a Control Agreement, After the Discharge of Credit Agreement Obligations, Obligors agree that they will, subject to Sections 2.2, 2.5 and 2.7(b), take any or all reasonable steps that Trustee requests in order for Trustee to obtain control in accordance with Sections 8-106, 9-104, 9-105, 9-106, and 9-107 of the date hereofCode with respect to any of its or their Securities Accounts, no Pledgor has any Deposit Accounts, electronic chattel paper, Investment Property, and letter-of-credit rights. No Control Agreement in respect of any Securities Accounts or Commodities Accounts other than Investment Property shall be modified by Obligors without the accounts listed on Schedule 6prior written consent of Trustee. For all After the Discharge of Credit Agreement Obligations, upon the occurrence and during the continuance of an Event of Default, subject to the provisions of any Control Agreement, Trustee may notify any bank or securities intermediary to liquidate the applicable Deposit Accounts Account or Securities Account or any related Investment Property maintained or held thereby and Securities Accounts maintained remit the proceeds thereof to an account designated by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which Trustee for the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a)Obligor; provided that, notwithstanding anything in any Financing Document to the extent contrary, Trustee agrees that it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply give any bank or securities intermediary written notice instructing such bank or securities intermediary to cease honoring the new Blocked Account being opened applicable Obligor’s instructions unless and within 90 days until an Event of opening such account, the Issuer shall ensure that the Collateral Agent Default has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Accountoccurred and is continuing.
(b) Within 90 days After the Discharge of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account Credit Agreement Obligations, Obligors shall not have Permitted Investments (other than the Excluded Cash Management Accounts, collectively, the “New Blocked Accounts”), ) in Deposit Accounts or Securities Accounts in an aggregate amount in excess of $4,000,000 outstanding at any one time unless the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which Obligor and the applicable institution shall agree securities intermediary or bank have entered into Control Agreements or similar arrangements governing such Permitted Investments in order to comply with perfect (and further establish) the Collateral AgentTrustee’s instructions with respect to disposition of funds Liens in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountPermitted Investments.
Appears in 1 contract
Sources: Security Agreement (SMART Modular Technologies (DE), Inc.)
Control Agreements. (a) As Within five (5) Business Days of the date hereofEighth Amendment Effective Date, no Pledgor has the Borrower shall deliver to the Administrative Agent a schedule setting forth each Deposit Account, securities account, and commodities account (including any Deposit Excluded Accounts) of each Loan Party existing as of the Eighth Amendment Effective Date and identifying the status of each such account as an Excluded Account or not an Excluded Account, Securities Accounts or Commodities Accounts other than certified by a Responsible Officer of the accounts listed on Schedule 6. For all Deposit Accounts Borrower as being true, accurate, and Securities Accounts maintained by the Issuer complete as of the date hereof of such delivery and confirming that no additional Deposit Account(s), securities account(s), or commodities account(s) have been opened since the Eighth Amendment Effective Date.
(b) With respect to each Deposit Account, securities account, and commodities account (other than Excluded Accounts) of each Loan Party existing as of the schedule delivered pursuant to Section 5.18(a), collectivelyand notwithstanding anything to the contrary in any Loan Document, the “Existing Blocked Accounts”), Borrower shall within sixty (60) days of the Issuer shall ensure that Eighth Amendment Effective Date (which date may be extended by the Collateral Agent has control (within the meaning of the UCCin its sole discretion), within 90 days after deliver a Control Agreement to the date Controlling Authorized Representative for each such Deposit Account, securities account, and commodities account (other than Excluded Accounts) of each Loan Party, in each case, in form and substance reasonably satisfactory to the Collateral Agent. Subject to the first sentence of this AgreementSection 5.18(b), and notwithstanding anything to the contrary in any Loan Document, at all times, each Deposit Account, securities account, and commodities account (other than Excluded Accounts) established and/or 1308166-NYCSR02A - MSW maintained by causing the institution maintaining each such Existing Blocked Account Loan Party must be subject to enter into a Control agreement with Agreement except as otherwise agreed by the Collateral Agent in its reasonable discretion.
(c) The Borrower and each other Loan Party hereby grants a security interest to the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning benefit of the UCC) with respect to such account. Notwithstanding anything else contained hereinSecured Parties, no institution shall be required to subordinate its security interest in a all any cash or Cash Equivalents, Deposit Account, Securities Account, commodities account or Commodities Account.
securities account (b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicableincluding securities entitlements and related assets, to enter into a control agreement with secure the Collateral AgentObligations, pursuant and the foregoing shall constitute Collateral, notwithstanding anything to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and contrary in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountLoan Document.
Appears in 1 contract
Control Agreements. Borrowers agree that they will not, and will not permit their Subsidiaries to, transfer assets out of any of their Cash Management Accounts or Securities Accounts; provided, however, that so long as no Event of Default has occurred and is continuing or would result therefrom, Borrowers and their Subsidiaries may use such assets (and the proceeds thereof) to the extent not prohibited by this Agreement or the other Loan Documents and, if the transfer is to another bank or securities intermediary, so long as the applicable Borrower or Subsidiary, Lender, and the substitute bank or securities intermediary have entered into a Control Agreement. Notwithstanding the foregoing, the parties understand and agree that as of the Closing Date: (a) As Borrowers have numerous local bank accounts which are not Cash Management Accounts (each, a "Local Bank Account") into which deposits are made on a daily basis in connection with the Bickford's Business and from which funds are directed to be transferr▇▇ ▇▇ ▇ ▇▇sh Management Account, (b) the Local Bank Accounts are not required to be subject to a Control Agreement, unless requested by Lender, (c) the transfer of funds from the Local Bank Accounts to a Cash Management Account shall not constitute a Default or an Event of Default under this Agreement, and (d) the failure of a Local Bank Account to be subject to a Control Agreement shall not constitute a Default or an Event of Default under this Agreement until forty-five (45) days after a written request by Lender that such Local Bank Account become subject to a Control Agreement. Borrowers agree that they will and will cause their Subsidiaries to take any or all reasonable steps that Lender requests in order for Lender to obtain control in accordance with Sections 9-104, 9-105, 9-106, and 9-107 of the date hereofCode with respect to any of its or their Securities Accounts, no Pledgor has any Deposit Accounts, electronic chattel paper, Investment Property, and letter-of-credit rights. No arrangement contemplated hereby or by any Control Agreement in respect of any Securities Accounts or Commodities Accounts other than Investment Property shall be modified by Borrowers without the accounts listed on Schedule 6prior written consent of Lender. For all Deposit Accounts Upon the occurrence and Securities Accounts maintained by during the Issuer as continuance of the date hereof (other than Excluded Accountsa Default or Event of Default, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account Lender may notify any bank or securities intermediary to enter into a Control agreement with the Collateral Agent, pursuant to which liquidate the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than or any related Investment Property maintained or held thereby and remit the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, proceeds thereof to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountLender's Account.
Appears in 1 contract
Control Agreements. (a) As of Each 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, no Pledgor has 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 AccountsAccount, Securities Accounts on or Commodities Accounts other 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 the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of forty-five (45) days after the date hereof (or such later time as the Agent may agree in its sole discretion), each Debtor shall cause each deposit account (other than Excluded Deposit Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after ) held or maintained by such Debtor on the date hereof to be subject to a Deposit Account Control Agreement duly executed by such Debtor and the bank at which such deposit account is maintained and delivered to Agent.
(b) All income earned or proceeds received by any Debtor and any direct or indirect Domestic Subsidiary thereof during the term of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution Agreement shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall be deposited promptly upon (and in any event within 90 days after notice from one Business Day of) receipt thereof by such Debtor in a deposit account that is subject to a fully executed Deposit Account Control Agreement, except for such income earned or proceeds permitted to be deposited in an Excluded Deposit Account or the Collateral Agent) close Frost Bank Excluded Account in accordance with this Agreement . Each Debtor shall take all steps to ensure that all 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 applicable Existing Blocked term “Excluded Deposit Account” means any deposit account established and used exclusively for payroll, transfer payroll taxes and similar employment taxes or other employee wage and benefit payments in the ordinary course of business to or for the benefit of 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 balances therein to another Blocked Account meeting of the requirements 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 Section 2.3Agreement (i) each Excluded Deposit Account shall at all times be used exclusively for payroll, and, if practicable, prior payroll taxes and similar employment taxes or other employee wage and benefit payments in the ordinary course of business to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable or for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transferbenefit of any Debtor’s employees, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) such Debtor will not make or cause any Pledgor acquiring of its direct or opening indirect subsidiaries to make any deposits in any Excluded Deposit Account or Securities Account (other than those necessary to fund payroll, payroll taxes and similar employment taxes or other employee wage and benefit payments in the Excluded Accounts, collectivelyordinary course of business to or for the benefit of any Debtor’s employees. As used herein, the term “New Blocked Accounts”), Frost Bank Excluded Account” means the applicable Pledgor shall ensure deposit account maintained by Nauticus Sub with Frost Bank (Acct No. 00001007) with a CD securing obligations under corporate credit cards and listed in Schedule III-3 hereto. Each Debtor covenants and agrees that during the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements term of this Section 2.3, and, if practicable, prior to such transfer, cause Agreement the institution maintaining such account to enter into a Control agreement aggregate amount of deposits contained in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) Frost Bank Excluded Account shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountexceed $750,000 at any time.
Appears in 1 contract
Sources: Pledge and Security Agreement (Nauticus Robotics, Inc.)
Control Agreements. With respect to any Mortgage Asset or collateral for a Mortgage Asset that is an uncertificated security (a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of defined in the UCC), within 90 days after securities entitlement (as defined in the date of this UCC) or is held in a securities account (as defined in the UCC), the Borrower shall provide to the Administrative Agent a control agreement, which shall be acceptable to the Administrative Agent in its discretion and shall be delivered to the Custodian under the Custodial Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent executed by the Issuerissuer of the Mortgage Asset or the collateral for the Mortgage Asset or the related securities intermediary (as defined in the UCC), as applicable, granting control (as defined in the UCC) of such Mortgage Asset or agree collateral for such Mortgage Asset to comply with the Collateral Agent’s Entitlement Orders with respect Administrative Agent and providing that, after an Event of Default, the Administrative agent shall be entitled to such Securities Account without further consent by notify the Issuerissuer or securities intermediary, as applicable. If any institution , that such issuer or securities intermediary shall comply exclusively with which an Existing Blocked Account is maintained refuses tothe instructions or entitlement orders (as defined in the UCC), or does notas applicable, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained hereinAdministrative Agent without the consent of the Borrower or any other Person and no longer follow the instructions or entitlement orders, no institution shall be required to subordinate its security interest in a Deposit Accountas applicable, Securities Account, of the Borrower or Commodities Account.
(b) Within 90 days of (1) any other Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded AccountsAdministrative Agent). All of the Borrowers’ right, collectivelytitle 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 of all transfer documents to be completed by the Administrative Agent as agent for the Lenders and executed copies of any transfer documents to be completed by the applicable Borrower, in either case in blank, but in form sufficient to allow transfer and registration of such Mortgage Assets to the “New Blocked Accounts”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 Pledgor shall ensure that the Collateral Agent has Control with Borrower, in blank. With respect to any New Blocked Account of such Pledgor by causing Mortgage Assets that shall be delivered through the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor DTC or the opening National Book Entry System of such New Blocked Accountthe Federal Reserve or any similar firm or agency, as applicable, in book—entry form and credited to enter into a control agreement with or otherwise held in an account, the Collateral Agent, pursuant Borrowers shall take such actions necessary to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, provide instruction to the extent it is not practicable for relevant financial institution, clearing corporation, securities intermediary or other entity to cause effect and perfect a legally valid delivery of the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply relevant interest granted herein to the new Blocked Account being opened 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 within 90 days of opening such account, such Pledgor shall ensure that held in the Collateral Agent has control (within the meaning name of the UCC) with respect to such accountAdministrative Agent as agent for the Lenders in the Securities Account.
Appears in 1 contract
Sources: Credit Agreement (Northstar Realty)
Control Agreements. (ai) As of the date hereof, no Pledgor has any Each Grantor shall obtain and keep effective a Control Agreement from each bank maintaining a Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof Account for such Grantor (other than Excluded AccountsAssets) including such bank and Deposit Accounts set forth on Schedule 6(k);
(ii) Each Grantor shall obtain and keep effective a Control Agreement, collectivelyfrom each issuer of uncertificated securities, securities intermediary, or commodities intermediary issuing or holding any financial assets or commodities (other than Excluded Assets) to or for any Grantor;
(iii) 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 “Existing Blocked AccountsControl Notice”), the Issuer shall ensure that the Collateral Agent has control bank, intermediary or other Person described in clauses (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to i)-(iii) above will comply with any instructions originated by Control Agent directing the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities applicable Account without further consent by the Issuer, as applicable, or agree applicable Grantor. Agent agrees not to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into issue a Control agreement in response Notice unless a Triggering Event has occurred and is continuing at the time such Control Notice is issued. Agent agrees to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into rescind a Control agreement in compliance with this Section 2.3(a); provided that, to Notice (the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i“Rescission”) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of if : (1) any Person becoming a Pledgor the Triggering Event has been cured or waived in writing in accordance with the terms of the Credit Agreement, and (ii2) any Pledgor acquiring no additional Triggering Event has occurred and is continuing prior to the date of the Rescission or opening any Deposit Account is reasonably expected to occur on or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days immediately after the date of such 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 becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement described in clauses (i)-(iii) above with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition prior written consent of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (Agent and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(iiGrantors may thereafter amend Schedule 6(k); provided thathowever, in respect of such Deposit Accounts (other than Excluded Assets), simultaneously with or as promptly as practicable after such closure or replacement, as requested by Agent, the applicable Grantor and such bank, intermediary or other Person shall have executed and delivered to the extent it is not practicable for to cause the institution maintaining such account to enter into Agent a Control agreement prior Agreement in form reasonably satisfactory to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountAgent.
Appears in 1 contract
Sources: Security Agreement (Platinum Energy Solutions, Inc.)
Control Agreements. (a) As of the date hereof, no Pledgor has any For each Deposit AccountsAccount, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts Account and Securities Accounts maintained by the Issuer as of the date hereof Commodity Account (other than Excluded De Minimis Accounts) that such Grantor at any time maintains, collectivelysuch Grantor will, substantially contemporaneously with the “Existing Blocked opening of such Deposit Account, Securities Account or Commodity Account (other than De Minimis Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account pursuant to enter into a Control agreement with Agreement in form and substance satisfactory to the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining depository bank that maintains such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, securities intermediary that maintains such Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure commodities intermediary that the Collateral Agent has Control with respect to any New Blocked Account of maintains such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Commodity Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall 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 instructions with respect to disposition of funds security interest in such Blocked Deposit Account, Securities Account without further consent by such Pledgoror 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 agree prevent or limit the ability of any Grantor to comply with direct the Collateral Agent’s Entitlement Orders with respect to such disposition of, the funds and other assets held in any Deposit Account, Securities Account without further consent by such Pledgoror Commodity Account. Notwithstanding the foregoing, as applicable. If any institution with which provided that the relevant Grantor shall have used its commercially reasonable efforts for a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within period of at least 90 days after notice from the Collateral Agent) close following the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account date to enter into a Control agreement control agreements in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days favor of opening such account, such Pledgor shall ensure that the Collateral Agent has in respect to any such Deposit Accounts, Securities Accounts and Commodities Accounts (other than De Minimis Accounts), such Grantor shall be relieved of any further obligation to deliver control (within agreements so long as the meaning Priority Lien Representative or agents or bailees of the UCCPriority Lien Representative maintains a perfected second priority lien (subject to Intercreditor Agreement) with respect for the benefit of the Parity Lien Secured Parties through control of such Deposit Accounts, Securities Accounts and Commodities Accounts pursuant to such accounta control agreement.
Appears in 1 contract
Sources: Second Lien Pledge and Security Agreement (Centennial Resource Development, Inc.)
Control Agreements. (ai) As of the date hereof, no Pledgor has any Each Grantor shall obtain and keep effective a Control Agreement from each bank maintaining a Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof Account for such Grantor (other than Excluded AccountsAssets) including such bank and Deposit Accounts set forth on Schedule 6(k);
(ii) Each Grantor shall obtain and keep effective a Control Agreement, collectivelyfrom each issuer of uncertificated securities, securities intermediary, or commodities intermediary issuing or holding any financial assets or commodities (other than Excluded Assets) to or for any Grantor;
(iii) 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 “Existing Blocked AccountsControl Notice”), the Issuer shall ensure that the Collateral Agent has control bank, intermediary or other Person described in clauses (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to i)-(iii) above will comply with any instructions originated by Control Agent directing the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities applicable Account without further consent by the Issuer, as applicable, or agree applicable Grantor. Lender agrees not to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into issue a Control agreement in response Notice unless a Triggering Event has occurred and is continuing at the time such Control Notice is issued. Lender agrees to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into rescind a Control agreement in compliance with this Section 2.3(a); provided that, to Notice (the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i“Rescission”) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of if : (1) any Person becoming a Pledgor the Triggering Event has been cured or waived in writing in accordance with the terms of the Credit Agreement, and (ii2) any Pledgor acquiring no additional Triggering Event has occurred and is continuing prior to the date of the Rescission or opening any Deposit Account is reasonably expected to occur on or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days immediately after the date of such 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 becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds described in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly clauses (i)-(iii) above and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(iiGrantors may amend Schedule 6(k); provided thathowever, in respect of such Deposit Accounts (other than Excluded Assets), as promptly as practicable after such closure or replacement, the applicable Grantor and such bank, intermediary or other Person shall have executed and delivered to the extent it is not practicable for to cause the institution maintaining such account to enter into Lender a Control agreement prior Agreement in form reasonably satisfactory to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountLender.
Appears in 1 contract
Sources: Security Agreement (Platinum Energy Solutions, Inc.)
Control Agreements. Subject to the limitations set forth in the Security Documents, on or before the Closing Date, each Loan Party shall obtain an authenticated Control Agreement, from each bank maintaining a Deposit Account or a Securities Account for such Loan Party (a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all any Excluded Accounts); provided that with respect to Deposit Accounts and Securities Accounts maintained by the Issuer as Holdings, Clover Leaf Seafood, or any other Loan Party organized outside of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning United States or Canada with a bank located outside of the UCC)United States or Canada, within 90 days after the date of this Agreement, by causing the institution maintaining each any such Existing Blocked Account Person shall only be required to enter into a use its commercially reasonable efforts to obtain Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders Agreements with respect to such Deposit Accounts and Securities Account without further consent 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 IssuerLoan Parties shall not establish any Deposit Accounts or Securities Accounts after the Closing Date unless such Loan Party, as applicable, or agree to comply concurrently with the Collateral Agent’s Entitlement Orders with respect to establishment of any such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than or such later date as may be agreed by the Excluded Accounts, collectively, Agent in its Permitted Discretion) shall have obtained an authenticated Control Agreement from the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution bank maintaining such account, within 90 days after the date of such Person becoming a Pledgor Deposit Account or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to securities intermediary maintaining such Securities Account without further consent by such Pledgor, as applicable. If any institution and to have complied in full with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements provisions of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC5.20(a) with respect to such accountDeposit 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 “control” (as defined in the UCC) by reason of such Deposit Account being maintained at the Agent or otherwise (including another method under foreign or domestic Applicable Law). Each Canadian Guarantor with a Controlled Account subject to a Control Agreement will instruct the applicable Controlled Account Bank each day to wire all amounts in the applicable Controlled Account to Agent’s Account.
Appears in 1 contract
Sources: Senior Secured Super Priority Debtor in Possession Credit Agreement
Control Agreements. (a) As Borrower agrees that it will not, and will not permit its Subsidiaries to, transfer assets out of any of their Deposit Accounts (other than as specified in Section 2.7 with respect to Cash Management Accounts) or Securities Accounts; provided, however, that so long as no Event of Default has occurred and is continuing or would result therefrom, Borrower and its Subsidiaries may use such assets (and the date proceeds thereof) to the extent not prohibited by this Agreement or the other Loan Documents and, if the transfer is to another bank or securities intermediary, so long as Borrower (or its Subsidiary, as applicable), Agent, and the substitute bank or securities intermediary have entered into a Control Agreement (subject to Section 7.12 hereof, no Pledgor has ). No arrangement contemplated hereby or by any Deposit Accounts, Control Agreement in respect of any Securities Accounts or Commodities Accounts other than Investment Property shall be modified by Borrower without the accounts listed on Schedule 6prior written consent of Agent. For all Upon the occurrence and during the continuance of an Event of Default, Agent may notify any bank or securities intermediary to liquidate the applicable Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof Account (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, including pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC2.7(c) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required Cash Management Accounts) or Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to subordinate its security interest in a Deposit Account, Securities Account, the Agent’s Account or Commodities Accountas otherwise directed by Agent.
(b) Within 90 days of Borrower agrees that, subject to Section 2.7 (1with respect to Cash Management Accounts) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any and Section 7.12 with respect to all other Deposit Account or Accounts and Securities Account (other than the Excluded Accounts, collectivelyit will and will cause its Subsidiaries to take any or all reasonable steps that Agent requests in order for Agent to obtain control in accordance with Sections 9-104, 9-105, 9-106, and 9-107 of the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control Code with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account(i) its or their Securities Accounts, within 90 days after the date of such Person becoming Deposit Accounts, electronic chattel paper, Investment Property, and (ii) only during a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral AgentTriggering Period, pursuant to which the applicable institution any such reasonable (in Agent's Permitted Discretion) request, its or their letter-of-credit rights; provided, however, that Borrower shall agree not be so required to comply with the Collateral Agent’s instructions cause Agent to obtain such control with respect to disposition of funds in such Blocked the Special Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such and Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountInvestments.
Appears in 1 contract
Control Agreements. (a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening Obligor opens any Deposit Account or Securities Account (other than the an Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control Account) with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor bank or the opening of such New Blocked Accountsecurities intermediary, as applicable, or if any Deposit Account or Securities Account ceases to enter into be an Excluded Account, such Obligor shall 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 control agreement 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 such assets is to a Deposit Account or Securities Account maintained with a Person other than the Collateral Agent, pursuant (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 which a control agreement in favor of the applicable institution shall agree Collateral Agent, (d) such Deposit Account or Securities Account is not an Excluded Account, and (e) after giving effect to comply the proposed transfer, the aggregate value of all such assets (that are not either maintained with the Collateral Agent’s instructions with respect Agent or subject to disposition 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 funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders Agent with respect to such Deposit Account or Securities Account without further consent by Account. The Obligors shall provide written notice to the Collateral Agent in the event that the aggregate value of all assets held in such Pledgor, as applicable. If any institution Deposit Accounts or Securities Accounts (other than Deposit Accounts or Securities Accounts maintained with the Collateral Agent or which a New Blocked Account is maintained refuses to, or does not, enter into are subject to a Control agreement Agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from favor of the Collateral Agent) close exceeds $500,000 in the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountaggregate.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Bain Capital Specialty Finance, Inc.)
Control Agreements. (a) As (i) Enter into the Deposit Account Control Agreements required to be provided pursuant to Section 6.1 of the date hereofGuarantee and Collateral Agreement, no Pledgor has any Deposit Accounts(ii) enter into the Local Blocked Account Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement, Securities Accounts or Commodities Accounts other than (iii) enter into the accounts listed on Schedule 6Collateral Access Agreements required to be provided pursuant to Section 5.13 of the Guarantee and Collateral Agreement, (iii) open the Collection Account with the Administrative Agent and (iv) deliver to the Administrative Agent executed DDA Notifications (as defined in the Guarantee and Collateral Agreement) required to be provided pursuant to Section 6.4 of the Guarantee and Collateral Agreement. For all Deposit Accounts and Securities Accounts maintained In connection with the foregoing, the Borrower shall, if requested by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Administrative Agent, pursuant promptly deliver to which the applicable institution shall agree Administrative Agent a favorable written opinion (addressed to comply with the Collateral Agent’s instructions with respect Administrative Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect Administrative Agent and covering customary matters relating to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (control and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Accountaccess agreements.
(b) Within 90 days The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all Loan Parties in accounts (1including Reserved Local Blocked Accounts but other than (i) any Person becoming a Pledgor each Deposit Account, the funds in which are used, in the ordinary course of business, solely for the payment of salaries and wages, workers’ compensation, pension benefits and similar expenses or taxes related thereto, (ii) any Pledgor acquiring or opening any each Deposit Account or Securities Account (other than a Reserved Local Blocked Account) used, in the Excluded ordinary course of business, solely for daily accounts payable and that has an ending daily balance of zero and (iii) each Deposit Account (other than Reserved Local Blocked Accounts) used in the ordinary course of business for local store accounts (which shall be governed by Section 6.4 of the Guarantee and Collateral Agreement)) not subject to Deposit Account Control Agreements or other appropriate control agreements in favor of the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent at each time when the Borrower delivers Borrowing Base reports pursuant to Section 6.2(g), collectivelyand (x) if such aggregate balance under clause (ii) above shall at any time of determination exceed $1,000,000, the “New Borrower shall promptly eliminate such excess from such accounts or shall within 30 days enter, or cause the applicable Loan Parties to enter, into one or more Deposit Account Control Agreements or other appropriate control agreements in favor of the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent so that there shall not thereafter be any such excess and (y) if such aggregate balance in Reserved Local Blocked Accounts”)Accounts shall at any time of determination exceed $1,000,000, the applicable Pledgor shall ensure Borrower shall, within three Business Days, eliminate such excess from such accounts; provided, however, that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 Borrower shall have 30 days after the Closing Date (or such later date of such Person becoming a Pledgor or as the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution Administrative Agent shall agree in its Permitted Discretion) to comply with the Collateral Agent’s instructions with respect to disposition of funds in obtain such Blocked Deposit Account without further consent by such Pledgor, Control Agreements or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has other appropriate control (within the meaning of the UCC) with respect to such accountagreements.
Appears in 1 contract
Sources: Secured Superpriority Debtor in Possession Credit Agreement (NBC Acquisition Corp)
Control Agreements. (a) As of Each 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, no Pledgor has 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 AccountsAccount, Securities Accounts on or Commodities Accounts other 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 the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of forty-five (45) days after the date hereof (or such later time as the Agent may agree in its sole discretion), each Debtor shall cause each deposit account (other than Excluded Deposit Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after ) held or maintained by such Debtor on the date hereof to be subject to a Deposit Account Control Agreement duly executed by such Debtor and the bank at which such deposit account is maintained and delivered to Agent.
(b) All income earned or proceeds received by any Debtor and any direct or indirect Domestic Subsidiary thereof during the term of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution Agreement shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall be deposited promptly upon (and in any event within 90 days after notice from the Collateral Agentone Business Day of) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to receipt thereof by such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest Debtor in a deposit account that is subject to a fully executed Deposit AccountAccount Control Agreement, Securities Account, except for such income earned or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any proceeds permitted to be deposited in an Excluded Deposit Account or Securities the Frost Bank Excluded Account (in accordance with this Agreement . Each Debtor shall take all steps to ensure that all 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 the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure a deposit account that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account.168776.01000/150917043v.5
Appears in 1 contract
Sources: Pledge and Security Agreement (Nauticus Robotics, Inc.)
Control Agreements. (ai) As of Subject to Sections 6.16(d) and 6.16(e), each Loan Party shall, within 60 days after the date hereofClosing Date (or such longer period as the Administrative Agent may agree in its sole discretion) cause each bank at which such Loan Party maintains a Deposit Account (in each case, no Pledgor has any Deposit Accounts, Securities other than Excluded Accounts or Commodities Accounts and other than the accounts listed on Schedule 6. For all Designated Blocked Accounts) (each, a “Collateral Deposit Accounts Account”) and each Securities Accounts maintained by the Issuer as of the date hereof Intermediary at which such Loan Party maintains a Securities Account (in each case, other than Excluded Accounts) (each, collectively, the a “Existing Blocked AccountsCollateral Securities Account”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement Deposit Account Control Agreement or a Securities Account Control Agreement, as the case may be, with the Administrative Agent and such Loan Party.
(ii) In the event (x) any Loan Party or any bank at which a Collateral AgentDeposit Account is maintained shall, pursuant to which after the applicable institution shall agree to comply with date hereof, terminate the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Deposit Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders Control Agreement with respect to such Collateral Deposit Account for any reason, or (y) the Administrative Agent shall demand such termination as a result of the failure of such bank to comply in any material respect with the terms of such Deposit Account Control Agreement, in each case at the Administrative Agent’s written request, such Loan Party shall notify all of its respective obligors that were making payments to such Collateral Deposit Account, to make all future payments to another Collateral Deposit Account.
(iii) In the event (x) any Loan Party or any Securities Account without further consent by such Pledgor, as applicable. If any institution with Intermediary at which a New Blocked Collateral Securities Account is maintained refuses toshall, or does notafter the date hereof, enter into a terminate the Securities Account Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) Agreement with respect to such accountCollateral Securities Account for any reason, or (y) the Administrative Agent shall demand such termination as a result of the failure of a Securities Intermediary to comply in any material respect with the terms of such Securities Account Control Agreement, in each case at the Administrative Agent’s written request, such Loan Party shall notify all of its obligors that were making payments to such Collateral Securities Account to make all future payments to another Collateral Securities Account.
(iv) At no time following the receipt by the Administrative Agent of an Enforcement Notice issued by the Applicable First Lien Agent may any First Lien Trust Monies or identifiable Proceeds of First Lien Priority Collateral be commingled with any ABL Priority Collateral or any Proceeds of ABL Priority Collateral.
Appears in 1 contract
Control Agreements. (a) As Borrower agrees that it will not transfer assets out of any Securities Accounts other than as permitted under Section 7.12 and, if to another securities intermediary, unless each of Borrower, Lender, and the date hereof, no Pledgor has substitute securities intermediary have entered into a Control Agreement. No arrangement contemplated hereby or by any Deposit Accounts, Control Agreement in respect of any Securities Accounts or Commodities Accounts other Investment Property shall be modified by Borrower without the prior written consent of Lender. Upon the occurrence and during the continuance of an Event of Default and upon acceleration, Lender may notify any securities intermediary to liquidate the applicable Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to the Lender's Account; (b) Borrower shall deliver for each Deposit Account listed in Section 3.2(b), a Control Agreement in form and substance reasonably acceptable to Lender. Each such Control Agreement shall provide, among other things, that (i) all items of payment deposited in such Deposit Account and proceeds thereof are held by the relevant financial institution for the benefit of Lender or as a bailee-in-possession for Lender, (ii) such financial institution has no rights of setoff or recoupment or any other claim against the applicable Deposit Account, other than for payment of its service fees and other charges directly related to the accounts listed on Schedule 6administration of such Deposit Account and for returned checks or other items of payment, and (iii) upon the occurrence and continuance of an Event of Default, such financial institution immediately will forward by daily sweep all amounts in the applicable Deposit Account to the Lender's Account. For all Borrower agrees that it will not open any Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days Account after the date of this AgreementClosing Date unless Borrower, by causing the Lender and that relevant financial institution maintaining each such Existing Blocked Account to enter have entered into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with Agreement. No arrangement contemplated hereby or by any Control Agreement in respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than shall be modified by Borrower without the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account prior written consent of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountLender.
Appears in 1 contract
Sources: Loan and Security Agreement (New World Restaurant Group Inc)
Control Agreements. For each deposit or securities account that the Parent Guarantor, the Borrower or any other Loan Party maintains as of the Third Amendment Effective Date (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 Third Amendment Effective Date, either (a) As cause such account to be subject to a 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 date hereofOther Secured Persons, no Pledgor has or (b) close such account and transfer any Deposit Accountsfunds therein to an account that otherwise meets the requirements of this Section 9.20. From and after the Third Amendment Effective Date, Securities Accounts neither the Parent Guarantor, the Borrower nor any other Loan Party shall open, any deposit or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof securities account (other than Excluded Accountspayroll, collectivelywithholding tax, escrow, trust fund and other fiduciary deposit accounts) unless such deposit or securities account is, or within 30 days after being opened becomes, subject to a deposit account control agreement or securities account control agreement, as applicable, in form and substance reasonably satisfactory to the “Existing Blocked Accounts”Administrative Agent naming the Administrative Agent as the secured party thereunder for the benefit of the Other Secured Persons. Notwithstanding the foregoing, for each 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 each case, other than payroll, withholding tax, escrow, trust fund and other fiduciary deposit accounts), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC)Parent Guarantor will, within 90 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 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 (b) close such account and transfer any funds therein to an account that otherwise meets the requirements of this Agreement, by causing Section 9.20. Each deposit account control agreement will provide that the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to depositary bank will comply with instructions originated by the Collateral Agent’s instructions with respect to disposition Administrative Agent directing dispositions of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account deposit account without further consent by the Issuer, as applicable, or agree to applicable Loan Party. Each securities account control agreement will provide that the securities intermediary will comply with entitlement orders originated by the Collateral Agent’s Entitlement Orders with respect to such Securities Account Administrative Agent without further consent by the Issuerapplicable Loan Party. The Administrative Agent agrees that it shall not issue any such instructions or entitlement orders or otherwise exercise any control right granted under any such deposit account control agreement or securities account control agreement unless (a) an Event of Default of the type set forth in Sections 10.01(a), as applicable. If any institution with which an Existing Blocked Account is maintained refuses to(b), (f), (g), (h), (i), or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agentj) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, occurred or Commodities Account.
(b) Within 90 days of the Notes and the Loans then outstanding have become due and payable in whole (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”and not merely in part), whether at the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor due date thereof, by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor acceleration or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent otherwise.171 171 Section 9.20 added by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountThird Amendment.
Appears in 1 contract
Control Agreements. (a) As Within five (5) Business Days of the date hereofEighth Amendment Effective Date, no Pledgor has the Borrower shall deliver to the Administrative Agent a schedule setting forth each Deposit Account, securities account, and commodities account (including any Deposit Excluded Accounts) of each Loan Party existing as of the Eighth Amendment Effective Date and identifying the status of each such account as an Excluded Account or not an Excluded Account, Securities Accounts or Commodities Accounts other than certified by a Responsible Officer of the accounts listed on Schedule 6. For all Deposit Accounts Borrower as being true, accurate, and Securities Accounts maintained by the Issuer complete as of the date hereof of such delivery and confirming that no additional Deposit Account(s), securities account(s), or commodities account(s) have been opened since the Eighth Amendment Effective Date.
(b) With respect to each Deposit Account, securities account, and commodities account (other than Excluded Accounts) of each Loan Party existing as of the schedule delivered pursuant to Section 5.18(a), collectivelyand notwithstanding anything to the contrary in any Loan Document, the “Existing Blocked Accounts”), Borrower shall within sixty (60) days of the Issuer shall ensure that Eighth Amendment Effective Date (which date may be extended by the Collateral Agent has control (within the meaning of the UCCin its sole discretion), within 90 days after deliver a Control Agreement to the date Controlling Authorized Representative for each such Deposit Account, securities account, and commodities account (other than Excluded Accounts) of each Loan Party, in each case, in form and substance reasonably satisfactory to the Collateral Agent. Subject to the first sentence of this AgreementSection 5.18(b), and notwithstanding anything to the contrary in any Loan Document, at all times, each Deposit Account, securities account, and commodities account (other than Excluded Accounts) established and/or maintained by causing the institution maintaining each such Existing Blocked Account Loan Party must be subject to enter into a Control agreement with Agreement except as otherwise agreed by the Collateral Agent in its reasonable discretion.
(c) The Borrower and each other Loan Party hereby grants a security interest to the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning benefit of the UCC) with respect to such account. Notwithstanding anything else contained hereinSecured Parties, no institution shall be required to subordinate its security interest in a all any cash or Cash Equivalents, Deposit Account, Securities Account, commodities account or Commodities Account.
securities account (b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicableincluding securities entitlements and related assets, to enter into a control agreement with secure the Collateral AgentObligations, pursuant and the foregoing shall constitute Collateral, notwithstanding anything to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and contrary in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountLoan Document.
Appears in 1 contract
Control Agreements. (a) As Within five (5) Business Days of the date hereofEighth Amendment Effective Date, no Pledgor has the Borrower shall deliver to the Administrative Agent a schedule setting forth each Deposit Account, securities account, and commodities account (including any Deposit Excluded Accounts) of each Loan Party existing as of the Eighth Amendment Effective Date and identifying the status of each such account as an Excluded Account or not an Excluded Account, Securities Accounts or Commodities Accounts other than certified by a Responsible Officer of the accounts listed on Schedule 6. For all Deposit Accounts Borrower as being true, accurate, and Securities Accounts maintained by the Issuer complete as of the date hereof of such delivery and confirming that no additional Deposit Account(s), securities account(s), or commodities account(s) have been opened since the Eighth Amendment Effective Date.
(b) With respect to each Deposit Account, securities account, and commodities account (other than Excluded Accounts) of each Loan Party existing as of the schedule delivered pursuant to Section 5.18(a), collectivelyand notwithstanding anything to the contrary in any Loan Document, the “Existing Blocked Accounts”), Borrower shall within sixty (60) days of the Issuer shall ensure that Eighth Amendment Effective Date (which date may be extended by the Collateral Agent has control (within the meaning of the UCCin its sole discretion), within 90 days after deliver a Control Agreement to the date Controlling Authorized Representative for each such Deposit Account, securities account, and commodities account (other than Excluded Accounts) of each Loan Party, in each case, in form and substance reasonably satisfactory to the Collateral Agent. Subject to the first sentence of this AgreementSection 5.18(b), and notwithstanding anything to the contrary in any Loan Document, at all times, each Deposit Account, securities account, and commodities account (other than Excluded Accounts) established and/or maintained by causing the institution maintaining each such Existing Blocked Account Loan Party must be subject to enter into a Control agreement with Agreement except as otherwise agreed by the Collateral Agent in its reasonable discretion.
(c) The Borrower and each other Loan Party hereby grants a security interest to the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning benefit of the UCC) with respect to such account. Notwithstanding anything else contained hereinSecured Parties, no institution shall be required to subordinate its security interest in a all any cash or Cash Equivalents, Deposit Account, Securities Accountcommodities account or securities account (including securities entitlements and related assets, or Commodities Accountto secure the Obligations, and the foregoing shall constitute Collateral, notwithstanding anything to the contrary in any Loan Document.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicableSection 6. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided NEGATIVE COVENANTS The Borrower agrees that, to so long as the extent it is Termination Conditions are not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account.satisfied:
Appears in 1 contract
Control Agreements. (a) As The Founders, the Founder Entities, the Ordinary Shareholder, and the Group Companies shall use all reasonable endeavors to ensure that each party to the relevant Control Agreements fully perform its/his respective obligations thereunder and carry out the terms and the intent of the Control Agreements. Any termination, or material modification or waiver of, or material amendment to any Control Agreements shall require the written consent of the Majority Investors and the Series D Preference Supermajority; provided that if any termination, or material modification or waiver of, or material amendment to any Control Agreements in relation to the JV Entity would materially adversely affect the rights of the Option Holders under the Option Agreements, the written consent of the Series D+ Option Majority shall also be required, provided further that, such consent of the Series D+ Option Majority shall not be unreasonably withheld. If any of the Control Agreements becomes illegal, void or unenforceable under the PRC Laws after the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts the Parties (other than the accounts listed on Schedule 6. For all Deposit Accounts Investors) shall devise a feasible alternative legal structure reasonably satisfactory to the Majority Investors and Securities Accounts maintained Series D Preference Supermajority which gives effect to the intentions of the parties in each Control Agreement and the economic arrangement thereunder as closely as possible; provided that if such devised alternative legal structure in relation to the JV Entity would adversely affect the rights of Option Holders under the Option Agreements, such devised alternative legal structure shall also be consented by the Issuer as Series D+ Option Majority, provided further that, such consent of the date hereof Series D+ Option Majority shall not be unreasonably withheld. In the event that, (other than Excluded Accounts, collectivelya) upon any change of Laws or policy which may result in the invalidity or unenforceability of the Control Agreements, the “Existing Blocked Accounts”)Board, including the affirmative votes of all the Preference Directors, determines in good faith that there is no other reasonable alternative to accomplish the purposes of the Control Agreements, or (b) there is any termination, amendment (only if such amendment adversely affects the Company’s control over, or its beneficial interests, in any of the Group Companies) or material breach of any of the Control Agreements by the Founders, the Issuer shall ensure that Founder Entities, the Collateral Agent has control (within Ordinary Shareholder, or any Group Companies without the meaning of Majority Investors’, Series D Preference Supermajority’s and the UCC)Series D+ Option Majority’s prior consent and the Founders, within 90 days after the date of this AgreementFounder Entities, by causing the institution maintaining each such Existing Blocked Account Ordinary Shareholder, or any Group Companies, as the case may be, fail to enter into a Control agreement with undo the Collateral Agent, pursuant to which termination or amendment or cure the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuermaterial breach, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly within thirty (and in any event within 90 30) days after receipt of written notice from the Collateral Agent) close Majority Investors, the applicable Existing Blocked AccountSeries D Preference Supermajority and the Series D+ Option Majority, transfer all balances therein demanding such then, upon receiving a notice signed by the Majority Investors and the Series D Preference Supermajority if the Majority Investors and Series D Preference Supermajority have known such termination or amendment or the material breach, the Company shall repurchase, on the date of three months following the Company’s receipt of such written repurchase request (the “Repurchase Date”), from each Investor any number of such series of Preference Shares or Options that such Investor requests to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, be repurchased to the extent it is that such Preference Shares or Options have not practicable for the Issuer to cause the institution maintaining been previously repurchased or such account to enter Preference Shares or Option Shares have not been previously converted into a Control agreement Ordinary Shares at least three (3) days prior to such transferthe applicable Repurchase Date, Section 2.3(b)(i) shall not apply at a per share price that is equal to the new Blocked Account being opened and within 90 days sum of opening such account(aa) the Original Issue Price, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCCbb) with respect to such account. Notwithstanding anything else contained hereinthe Series D+ Preference Shares and Option Shares, no institution shall be required to subordinate its security a 10% per annum interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than compounded annually accruing on the Excluded Accounts, collectively, the “New Blocked Accounts”), Original Issue Price from the applicable Pledgor shall ensure that Original Issue Date for the Collateral Agent has Control Series D+ Preference Shares and Option Shares; with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such accountSeries D Preference Shares, within 90 days after a 10% per annum interest compounded annually accruing on the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which Original Issue Price from the applicable institution shall agree to comply with Original Issue Date for the Collateral Agent’s instructions Series D Preference Shares; with respect to disposition of funds in such Blocked Account without further consent by such Pledgorthe Series C Preference Shares, or agree to comply with a 10% per annum interest compounded annually accruing on the Collateral Agent’s Entitlement Orders Original Issue Price from the applicable Original Issue Date for the Series C Preference Shares; with respect to such Securities Account without further consent by such Pledgorthe Series B Preference Shares, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments 10% per annum interest compounded annually accruing on the Original Issue Price from the Collateral Agentapplicable Original Issue Date for the Series B Preference Shares, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Accountor, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountthe Series A Preference Shares, a 8% per annum interest compounded annually accruing on the applicable Original Issue Price from the applicable Original Issue Date for the Series A Preference Shares, and (cc) if any, the amount of all declared but unpaid dividends thereon. For avoidance of doubt, this Section 11.11 shall be subject to the term and conditions set forth under Article 3.07 of the Memorandum and Articles of Association.
Appears in 1 contract
Control Agreements. Within sixty (a60) As of days after the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts Effective Date (or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained such longer time period as agreed to by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”Collateral Agent in its sole discretion), the Issuer applicable Obligors shall ensure that deliver to the Collateral Agent has control (within the meaning one or more Control Agreements in respect of the UCC)each Deposit Account and Securities Account maintained by such Obligors which are not, within 90 days after as of the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement maintained with the Collateral Agent, pursuant to which the applicable institution shall agree to comply together with the Collateral Agent’s instructions with respect to disposition a favorable opinion of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders counsel with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a)Agreement; provided that, to that the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) Obligors shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, deliver any Control Agreement for any Excluded Account or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening 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 Control Agreement) would not be greater than $2,500,000 in the aggregate; provided further, for the avoidance of doubt, any Cash or other 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 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 Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has and (b) such assets are maintained in such Deposit Account or Securities Account by an Obligor, and (x) are not subject to a Control with respect to any New Blocked Account Agreement in favor of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant (y) such Deposit Account or Securities Account is not an Excluded Account, and (z) after giving effect to which the applicable institution shall agree to comply proposed transfer, the aggregate value of all such assets (that are not either maintained with the Collateral Agent’s instructions with respect Agent or subject to disposition a Control Agreement) would be greater than $2,500,000 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 funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders Agent with respect to such Deposit Account or Securities Account without further consent by Account. The Obligors shall provide prior written notice to the Collateral Agent in the event that the aggregate value of all assets held in such Pledgor, as applicable. If any institution Deposit Accounts or Securities Accounts (other than Deposit Accounts or Securities Accounts maintained with the Collateral Agent or which a New Blocked Account is maintained refuses to, or does not, enter into are subject to a Control agreement Agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from favor of the Collateral Agent) close exceeds or would exceed $2,500,000 in the applicable New Blocked Accountaggregate. 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, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within may notify any bank or Securities Intermediary to liquidate the meaning of applicable Deposit Account or Securities Account or any related Investment Property constituting Collateral maintained or held in such Securities Accounts and remit the UCC) with respect proceeds thereof to such accountthe Collateral Agent.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Franklin BSP Capital Corp)
Control Agreements. (a) As Parent and the Borrowers will not permit the aggregate balance of cash and Permitted Investments of the date hereofLoan Parties in any account (other than (i) each deposit account, no Pledgor 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 Account (as defined below)) not subject to Deposit Account Control Agreements or other appropriate control agreements in favor of the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent to exceed an amount to be specified by the Lenders in their discretion. Notwithstanding anything to the contrary in any Loan Document, Parent and the Borrowers shall not be required to maintain any Deposit AccountsAccount Control Agreement or other control agreement with respect to any BofA Excluded Account unless the Administrative Agent shall have delivered written notice to the 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 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 Bank of America, Securities N.A., or any of its Affiliates in respect of which there is not in effect a Deposit Account Control Agreement as of the Amendment Effective Date under Amendment No. 2 to this Agreement and (B) at all times on and after the 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 or Commodities (and shall in any event ensure that the aggregate amount contained in (1) the BofA Excluded Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained Canadian Account, shall not at any time exceed an amount to be specified by the Issuer as of Lenders in their discretion for all such accounts taken together, and (2) the date hereof (other than Canadian Account at any time that it is a BofA Excluded AccountsAccount, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account not at any time exceed an amount to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent be specified by the Issuer, Lenders in their discretion) and shall follow such procedures as applicable, the Administrative Agent or agree the Lenders may from time to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicabletime specify in connection therewith. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agentaa) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements Paragraph (d) of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution Article VII shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than amended by inserting at the Excluded Accounts, collectively, end thereof the phrase: “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening Borrowers shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(f) or 5.09(b) and such failure shall continue unremedied for a period of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account2 Business Days”.
Appears in 1 contract
Control Agreements. (a) As Borrower agrees that it will not, and will not permit its Subsidiaries to, transfer assets out of any of their Deposit Accounts (other than as specified in Section 2.7 with respect to Cash Management Accounts) or Securities Accounts; provided, however, that so long as no Event of Default has occurred and is continuing or would result therefrom, Borrower and its Subsidiaries may use such assets (and the date proceeds thereof) to the extent not prohibited by this Agreement or the other Loan Documents and, if the transfer is to another bank or securities intermediary, so long as Borrower (or its Subsidiary, as applicable), Agent, and the substitute bank or securities intermediary have entered into a Control Agreement (subject to Section 7.12 hereof, no Pledgor has ). No arrangement contemplated hereby or by any Deposit Accounts, Control Agreement in respect of any Securities Accounts or Commodities Accounts other than Investment Property shall be modified by Borrower without the accounts listed on Schedule 6prior written consent of Agent. For all Upon the occurrence and during the continuance of an Event of Default, Agent may notify any bank or securities intermediary to liquidate the applicable Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof Account (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, including pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC2.7(c) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required Cash Management Accounts) or Securities Account or any related Investment Property maintained or held thereby and remit the proceeds thereof to subordinate its security interest in a Deposit Account, Securities Account, the Agent’s Account or Commodities Accountas otherwise directed by Agent.
(b) Within 90 days of Borrower agrees that, subject to Section 2.7 (1with respect to Cash Management Accounts) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any and Section 7.12 with respect to all other Deposit Account or Accounts and Securities Account (other than the Excluded Accounts, collectivelyit will and will cause its Subsidiaries to take any or all reasonable steps that Agent requests in order for Agent to obtain control in accordance with Sections 9-104, 9-105, 9-106, and 9-107 of the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control Code with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account(i) its or their Securities Accounts, within 90 days after the date of such Person becoming Deposit Accounts, electronic chattel paper, Investment Property, and (ii) only during a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral AgentTriggering Period, pursuant to which the applicable institution shall agree to comply with the Collateral any such reasonable (in Agent’s instructions Permitted Discretion) request, its or their letter-of-credit rights; provided, however, that Borrower shall not be so required to cause Agent to obtain such control with respect to disposition of funds in such Blocked the Special Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such and Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountInvestments.
Appears in 1 contract
Control Agreements. (ai) As Subject to Section 4.19 of the date hereofIndenture, no Pledgor has any each Grantor shall obtain and keep effective a Control Agreement from each bank maintaining a Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof Account for such Grantor (other than Excluded AccountsAssets) including such bank and Deposit Accounts set forth on Schedule 6(k);
(ii) Subject to Section 4.19 of the Indenture, collectivelyeach Grantor shall obtain and keep effective a Control Agreement, from each issuer of uncertificated securities, securities intermediary, or commodities intermediary issuing or holding any financial assets or commodities (other than Excluded Assets) to or for any Grantor;
(iii) Subject to Section 4.19 of the Indenture and except to the extent otherwise excused by the Second 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 “Existing Blocked AccountsControl Notice”), the Issuer shall ensure that the Collateral Agent has control bank, intermediary or other Person described in clauses (within the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to i)-(iii) above will comply with any instructions originated by Control Agent directing the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities applicable Account without further consent by the Issuer, as applicable, or agree applicable Grantor. Collateral Agent agrees not to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into issue a Control agreement in response Notice unless a Triggering Event has occurred and is continuing at the time such Control Notice is issued. Collateral Agent agrees to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into rescind a Control agreement in compliance with this Section 2.3(a); provided that, to Notice (the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i“Rescission”) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained herein, no institution shall be required to subordinate its security interest in a Deposit Account, Securities Account, or Commodities Account.
(b) Within 90 days of if : (1) any Person becoming a Pledgor the Triggering Event has been cured or waived in writing in accordance with the terms of the Indenture, and (ii2) any Pledgor acquiring no additional Triggering Event has occurred and is continuing prior to the date of the Rescission or opening any Deposit Account is reasonably expected to occur on or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days immediately after the date of such the Rescission;
(v) So long as no Event of Default has occurred and is continuing, Grantors may close accounts or replace any bank, intermediary or other Person becoming a Pledgor or the opening of such New Blocked Account, as applicable, to enter into a control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds described in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly clauses (i)-(iii) above and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(iiGrantors may amend Schedule 6(k); provided thathowever, in respect of such Deposit Accounts (other than Excluded Assets), as promptly as practicable after such closure or replacement, the applicable Grantor and such bank, intermediary or other Person shall have executed and delivered to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect a Control Agreement in form reasonably satisfactory to such accountCollateral Agent.
Appears in 1 contract
Sources: Security Agreement (Platinum Pressure Pumping, Inc.)
Control Agreements. With respect to any Mortgage Asset or collateral for a Mortgage Asset that is an uncertificated security (a) As of the date hereof, no Pledgor has any Deposit Accounts, Securities Accounts or Commodities Accounts other than the accounts listed on Schedule 6. For all Deposit Accounts and Securities Accounts maintained by the Issuer as of the date hereof (other than Excluded Accounts, collectively, the “Existing Blocked Accounts”), the Issuer shall ensure that the Collateral Agent has control (within the meaning of defined in the UCC), within 90 days after securities entitlement (as defined in the date of this UCC) or is held in a securities account (as defined in the UCC), the Borrower shall provide to the Administrative Agent a control agreement, which shall be acceptable to the Administrative Agent in its discretion and shall be delivered to the Custodian under the Custodial Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent executed by the Issuerissuer of the Mortgage Asset or the collateral for the Mortgage Asset or the related securities intermediary (as defined in the UCC), as applicable, granting control (as defined in the UCC) of such Mortgage Asset or agree collateral for such Mortgage Asset to comply with the Collateral Agent’s Entitlement Orders with respect Administrative Agent and providing that, after an Event of Default, the Administrative agent shall be entitled to such Securities Account without further consent by notify the Issuerissuer or securities intermediary, as applicable. If any institution , that such issuer or securities intermediary shall comply exclusively with which an Existing Blocked Account is maintained refuses tothe instructions or entitlement orders (as defined in the UCC), or does notas applicable, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such account. Notwithstanding anything else contained hereinAdministrative Agent without the consent of the Borrower or any other Person and no longer follow the instructions or entitlement orders, no institution shall be required to subordinate its security interest in a Deposit Accountas applicable, Securities Account, of the Borrower or Commodities Account.
(b) Within 90 days of (1) any other Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded AccountsAdministrative Agent). All of the Borrowers’ right, collectivelytitle 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 of all transfer documents to be completed by the Administrative Agent as agent for the Lenders and executed copies of any transfer documents to be completed by the applicable Borrower, in either case in blank, but in form sufficient to allow transfer and registration of such Mortgage Assets to the “New Blocked Accounts”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 Pledgor shall ensure that the Collateral Agent has Control with Borrower, in blank. With respect to any New Blocked Account of such Pledgor by causing Mortgage Assets that shall be delivered through the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor DTC or the opening National Book Entry System of such New Blocked Accountthe Federal Reserve or any similar firm or agency, as applicable, in book-entry form and credited to enter into a control agreement with or otherwise held in an account, the Collateral Agent, pursuant Borrowers shall take such actions necessary to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, provide instruction to the extent it is not practicable for relevant financial institution, clearing corporation, securities intermediary or other entity to cause effect and perfect a legally valid delivery of the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply relevant interest granted herein to the new Blocked Account being opened 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 within 90 days of opening such account, such Pledgor shall ensure that held in the Collateral Agent has control (within the meaning name of the UCC) with respect to such accountAdministrative Agent as agent for the Lenders in the Securities Account.
Appears in 1 contract
Sources: Credit Agreement (CapLease, Inc.)
Control Agreements. (a) As Within five (5) Business Days of the date hereofFourth Amendment Effective Date, no Pledgor has the Borrower shall deliver to the Administrative Agent a schedule setting forth each Deposit Account, securities account, and commodities account (including any Deposit Excluded Accounts) of each Loan Party existing as of the Fourth Amendment Effective Date and identifying the status of each such account as an Excluded Account or not an Excluded Account, Securities Accounts or Commodities Accounts other than certified by a Responsible Officer of the accounts listed on Schedule 6. For all Deposit Accounts Borrower as being true, accurate, and Securities Accounts maintained by the Issuer complete as of the date hereof of such delivery and confirming that no additional Deposit Account(s), securities account(s), or commodities account(s) have been opened since the Fourth Amendment Effective Date.
(b) With respect to each Deposit Account, securities account, and commodities account (other than Excluded Accounts) of each Loan Party existing as of the schedule delivered pursuant to Section 5.18(a), collectivelyand notwithstanding anything to the contrary in any Loan Document, the “Existing Blocked Accounts”Borrower shall within sixty (60) days of the Fourth Amendment Effective Date (which date may be extended by the ULCA Collateral Agent in its sole discretion), deliver a Control Agreement to the Issuer shall ensure that Controlling Authorized Representative for each such Deposit Account, securities account, and commodities account (other than Excluded Accounts ) of each Loan Party, in each case, in form and substance reasonably satisfactory to the ULCA Collateral Agent. Subject to the first sentence of this Section 5.18(b), and notwithstanding anything to the contrary in any Loan Document, at all times, each Deposit Account, securities account, and commodities account (other than Excluded Accounts) established and/or maintained by each Loan Party must be subject to a Control Agreement except as otherwise agreed by the ULCA Collateral Agent has control in its reasonable discretion.
(within c) The Borrower and each other Loan Party hereby grants a security interest to the meaning of the UCC), within 90 days after the date of this Agreement, by causing the institution maintaining each such Existing Blocked Account to enter into a Control agreement with the ULCA Collateral Agent, pursuant to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Existing Blocked Account without further consent by Issuer or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by the Issuer, as applicable. If any institution with which an Existing Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the Issuer shall promptly (and in any event within 90 days after notice from the Collateral Agent) close the applicable Existing Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(a); provided that, to the extent it is not practicable for the Issuer to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, the Issuer shall ensure that the Collateral Agent has control (within the meaning benefit of the UCC) with respect to such account. Notwithstanding anything else contained hereinSecured Parties, no institution shall be required to subordinate its security interest in a all any cash or Cash Equivalents, Deposit Account, Securities Account, commodities account or Commodities Account.
securities account (b) Within 90 days of (1) any Person becoming a Pledgor or (ii) any Pledgor acquiring or opening any Deposit Account or Securities Account (other than the Excluded Accounts, collectively, the “New Blocked Accounts”), the applicable Pledgor shall ensure that the Collateral Agent has Control with respect to any New Blocked Account of such Pledgor by causing the institution maintaining such account, within 90 days after the date of such Person becoming a Pledgor or the opening of such New Blocked Account, as applicableincluding securities entitlements and related assets, to enter into a control agreement with secure the Collateral AgentObligations, pursuant and the foregoing shall constitute Collateral, notwithstanding anything to which the applicable institution shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in such Blocked Account without further consent by such Pledgor, or agree to comply with the Collateral Agent’s Entitlement Orders with respect to such Securities Account without further consent by such Pledgor, as applicable. If any institution with which a New Blocked Account is maintained refuses to, or does not, enter into a Control agreement in response to reasonable comments from the Collateral Agent, then the respective Pledgor shall promptly (and contrary in any event within 90 days after notice from the Collateral Agent) close the applicable New Blocked Account, transfer all balances therein to another Blocked Account meeting the requirements of this Section 2.3, and, if practicable, prior to such transfer, cause the institution maintaining such account to enter into a Control agreement in compliance with this Section 2.3(b)(ii); provided that, to the extent it is not practicable for to cause the institution maintaining such account to enter into a Control agreement prior to such transfer, Section 2.3(b)(i) shall not apply to the new Blocked Account being opened and within 90 days of opening such account, such Pledgor shall ensure that the Collateral Agent has control (within the meaning of the UCC) with respect to such accountLoan Document.
Appears in 1 contract
Sources: Uncommitted Letter of Credit and Reimbursement Agreement (New Fortress Energy Inc.)