Deposit and Investment Accounts. You will not maintain, nor permit any of Your Subsidiaries to maintain, any Deposit Accounts or accounts holding Investment Property owned by You (or such Subsidiaries) except (a) accounts identified in Exhibit C, as updated from time to time, (b) Deposit Accounts or accounts holding Investment Property holding amounts deposited in to cash-collateralize letters of credit to the extent the Lien on such cash collateral is permitted hereunder, (c) other accounts with respect to which We have a perfected Lien, (d) amounts deposited into Deposit Accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for You or Your Subsidiaries and such Deposit Accounts are solely under the control of the respective company providing the payroll and employee benefit payment services and provided such amounts do not exceed two months of payroll and employee benefit payments, and (e) Deposit Accounts used solely and exclusively for employee benefits, including, without limitation, to hold flexible spending account withholdings or amounts in respect of other Section 125 Plans. Such agreements to perfect Our lien shall be in form and substance satisfactory to Us and shall cause the depositary bank or securities intermediary to comply at all times with instructions from Us to such depositary bank or securities intermediary directing the disposition of funds from time to time credited to such Deposit Account or account holding Investment Property, without Your further consent. The parties acknowledge that upon the occurrence and during the continuance of an Event of Default We may give instructions and cause the depository bank or securities intermediary to withhold any withdrawal rights, We agree that We will not give any such instructions or withhold any withdrawal rights from You, unless an Event of Default has occurred and is continuing. We also agree to rescind instructions and any requests to withhold Your withdrawal rights mentioned in the foregoing sentences if: (a) the Event of Default upon which the instructions or request to withhold Your withdrawal rights was issued has been waived in accordance with the terms of the Loan Documents, and (b) no additional Event of has occurred and is continuing prior to the date such rescission notice is delivered or is reasonably expected to occur on or immediately after the date such rescission notice is delivered.
Appears in 2 contracts
Samples: And Security Agreement (Gevo, Inc.), And Security Agreement (Gevo, Inc.)
Deposit and Investment Accounts. None of You will not maintain, nor permit any of Your Subsidiaries to maintain, any Deposit Accounts or accounts holding Investment Property owned by any of You (or such Subsidiaries) except (ai) accounts identified in the Certificate of Perfection attached as Exhibit CC with respect to which Collateral Agent has a perfected security interest, (ii) accounts located outside of the United States provided that the funds in such accounts shall not exceed $2,500,000 in the aggregate as updated from time to any time, (biii) Deposit Accounts accounts used exclusively used, healthcare benefit claims and other benefit payments to or accounts holding Investment Property holding amounts deposited for the benefit of any of Your employees established and used in to cash-collateralize letters the ordinary course of credit to the extent the Lien on such cash collateral is permitted hereunderbusiness, (cthe accounts in the foregoing clauses (ii) and (iii) collectively, the “Excluded Accounts”) and (v) other accounts with respect to which We have Collateral Agent has a perfected Liensecurity interest (subject to Permitted Liens). You will give Us prior written notice of the creation of any Deposit Accounts or accounts holding Investment Property. · Transactions with Affiliates. None of You will directly or indirectly enter into or permit to exist any material transaction with any of Your Affiliates except for (i) transactions that are in the ordinary course of Your business, upon fair and reasonable terms that are no less favorable to You than would be obtained in an arm’s length transaction with a non-affiliated Person, (dii) amounts deposited into Deposit Accounts specially equity financings with Your existing investors that are not prohibited under this Agreement, (iii) unsecured bridge financings with Your existing investors that are not prohibited under this Agreement and exclusively used for payroll, payroll taxes that constitute Subordinated Indebtedness and other employee wage are evidenced by a subordination agreement on terms acceptable to Us in Our sole discretion and benefit payments to or for (iv) transactions among You or Your Subsidiaries that are not otherwise prohibited by this Agreement. None of You will directly or indirectly make any payment or distribution on account of any intercompany liabilities or indebtedness other than the type described in item (h) of the definition of Permitted Indebtedness. · Indebtedness. You will not prepay, redeem or otherwise satisfy in any manner prior to the scheduled repayment thereof any Indebtedness for borrowed money (other than the Advances and such Deposit Accounts are solely Indebtedness under the control of the respective company providing the payroll and employee benefit payment services and provided such amounts do not exceed two months of payroll and employee benefit paymentsWorking Capital Loan Facility), and (e) Deposit Accounts used solely and exclusively for employee benefitsYou shall not make or permit any payment on any Subordinated Indebtedness, including, without limitation, to hold flexible spending account withholdings or amounts in respect of other Section 125 Plans. Such agreements to perfect Our lien shall be in form and substance satisfactory to Us and shall cause the depositary bank or securities intermediary to comply at all times with instructions from Us to such depositary bank or securities intermediary directing the disposition of funds from time to time credited to such Deposit Account or account holding Investment Property, without Your further consent. The parties acknowledge that upon the occurrence and during the continuance of an Event of Default We may give instructions and cause the depository bank or securities intermediary to withhold any withdrawal rights, We agree that We will not give any such instructions or withhold any withdrawal rights from You, unless an Event of Default has occurred and is continuing. We also agree to rescind instructions and any requests to withhold Your withdrawal rights mentioned in the foregoing sentences if: (a) the Event of Default upon which the instructions or request to withhold Your withdrawal rights was issued has been waived in accordance with except under the terms of the Loan Documentssubordination, and (b) no additional Event of has occurred and intercreditor, or other similar agreement to which such Subordinated Indebtedness is continuing prior subject, or amend any provision in any document relating to the date such rescission notice is delivered Subordinated Indebtedness which would increase the amount thereof or is reasonably expected adversely affect the subordination thereof to occur on or immediately after the date such rescission notice is deliveredSecured Obligations owed to Us.
Appears in 2 contracts
Samples: Loan and Security Agreement (Casper Sleep Inc.), Loan and Security Agreement (Casper Sleep Inc.)
Deposit and Investment Accounts. You will not maintain, nor or permit any of Your Domestic Subsidiaries to maintain, any Deposit Accounts or accounts holding Investment Property owned by You (or such Domestic Subsidiaries) except (ai) accounts identified in Exhibit Cthe Certificate of Perfection with respect to which We have a perfected security interest, as updated from time to time, and (b) Deposit Accounts or accounts holding Investment Property holding amounts deposited in to cash-collateralize letters of credit to the extent the Lien on such cash collateral is permitted hereunder, (cii) other accounts with respect to which We have a perfected Lien, (d) amounts deposited into security interest. You will give Us prior written notice of the creation of any Deposit Accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for You or Your Subsidiaries and such Deposit Accounts are solely under the control of the respective company providing the payroll and employee benefit payment services and provided such amounts do not exceed two months of payroll and employee benefit payments, and (e) Deposit Accounts used solely and exclusively for employee benefits, including, without limitation, to hold flexible spending account withholdings or amounts in respect of other Section 125 Plans. Such agreements to perfect Our lien shall be in form and substance satisfactory to Us and shall cause the depositary bank or securities intermediary to comply at all times with instructions from Us to such depositary bank or securities intermediary directing the disposition of funds from time to time credited to such Deposit Account or account accounts holding Investment Property, without Your further consent. The parties acknowledge that upon the occurrence and during the continuance of an Event of Default We may give instructions and cause the depository bank or securities intermediary to withhold any withdrawal rights, We agree that We • Transactions with Affiliates. You will not give directly or indirectly enter into or permit to exist any material transaction with any of Your Affiliates except for (i) transactions that are in the ordinary course of Your business, upon fair and reasonable terms that are no less favorable to You than would be obtained in an arm’s length transaction with a non-affiliated Person, (ii) equity financings with Your investors existing as of the Closing Date that are otherwise permitted under this Agreement, (iii) unsecured bridge financings with Your investors existing as of the Closing Date that are otherwise permitted under this Agreement and that constitute Subordinated Indebtedness and are evidenced by a subordination agreement on terms acceptable to Us in Our sole discretion and (iv) transactions that constitute Permitted Investments. • Subordinated Indebtedness. You will not prepay, redeem or otherwise satisfy in any manner prior to the scheduled repayment thereof any Subordinated Indebtedness (other than the Advances and the conversion of any Subordinated Indebtedness into equity securities and the payment of cash in lieu of the issuance for fractional shares upon any such instructions conversion), and You shall not make or withhold permit any withdrawal rights from Youpayment on any Subordinated Indebtedness, unless an Event of Default has occurred and is continuing. We also agree to rescind instructions and any requests to withhold Your withdrawal rights mentioned in the foregoing sentences if: (a) the Event of Default upon which the instructions or request to withhold Your withdrawal rights was issued has been waived in accordance with except under the terms of the Loan Documentssubordination, and (b) no additional Event of has occurred and intercreditor, or other similar agreement to which such Subordinated Indebtedness is continuing prior subject, or amend any provision in any document relating to the date such rescission notice is delivered Subordinated Indebtedness which would increase the amount thereof or is reasonably expected adversely affect the subordination thereof, as the case may be, to occur on or immediately after the date such rescission notice is deliveredSecured Obligations owed to Us.
Appears in 2 contracts
Samples: Loan and Security Agreement (Aerohive Networks, Inc), Loan and Security Agreement (Aerohive Networks, Inc)
Deposit and Investment Accounts. You will not maintain, nor permit any of Your Subsidiaries to maintain, any Deposit Accounts or accounts holding Investment Property owned by any of You (or such Subsidiaries) except (a) accounts identified in Exhibit C, as updated from time to timeon Schedule I, (b) Deposit Accounts or accounts holding Investment Property holding amounts deposited in to cash-collateralize letters of credit to the extent the Lien on such cash collateral is permitted hereunder, (c) other accounts with respect to which We have a perfected Lien, (d) amounts deposited into Deposit Accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for You or Your Subsidiaries and such Deposit Accounts are solely under the control of the respective company providing the payroll and employee benefit payment services and provided such amounts do not exceed two months of payroll and employee benefit payments, and (e) Deposit Accounts used solely and exclusively for employee benefits, including, without limitation, to hold flexible spending account withholdings or amounts in respect of other Section 125 Plans. Notwithstanding the foregoing, You may maintain the Deposit Accounts and the accounts holding Investment Property listed on Schedule I in which We may not have a perfected Lien, so long as You use commercially reasonable efforts to obtain necessary agreements to perfect Our Lien in said accounts within five (5) Business Days after the date that the Agri-Energy Acquisitions are consummated and (ii) in any event, within thirty (30) Business Days after the date the Agri-Energy Acquisitions are consummated, such accounts have been closed or You have provided all necessary agreements to perfect Our Lien in said accounts. Such agreements to perfect Our our lien shall be in form and substance satisfactory to Us and shall cause the depositary bank or securities intermediary to comply at all times with instructions from Us to such depositary bank or securities intermediary directing the disposition of funds from time to time credited to such Deposit Account or account holding Investment PropertyAccount, without Your further consent. The parties Parties acknowledge that that, prior to Gevo, Inc.’s initial public offering, upon the occurrence and during the continuance of an Event of Default a Material Adverse Effect, We may give instructions and cause the depository depositary bank or securities intermediary to withhold any withdrawal rights, whether or not an Event of Default has occurred. We agree that We will not give any such instructions or withhold any withdrawal rights from You, unless either (y) prior to Gevo, Inc.’s initial public offering, a Material Adverse Effect has occurred and is continuing or (z) an Event of Default has occurred and is continuing. We also agree to rescind instructions and any requests to withhold Your withdrawal rights mentioned in the foregoing sentences if: (a) the Event of Default or Material Adverse Effect upon which the instructions or request to withhold Your withdrawal rights was issued has been waived in accordance with the terms of the Loan Documents, and (b) no additional Event of Default or Material Adverse Effect has occurred and is continuing prior to the date such rescission notice is delivered or is reasonably expected to occur on or immediately after the date such rescission notice is delivered.
Appears in 1 contract
Deposit and Investment Accounts. You will not maintain, nor or permit any of Your Subsidiaries to maintain, any Deposit Accounts or accounts holding Investment Property owned by You (or such Subsidiaries) except (ai) accounts identified in Exhibit C, as updated from time to time, the Certificate of Perfection and (b) Deposit Accounts or accounts holding Investment Property holding amounts deposited in to cash-collateralize letters of credit to the extent the Lien on such cash collateral is permitted hereunder, (cii) other accounts of You, Domestic Subsidiaries or Guarantors with respect to which We have a perfected Liensecurity interest which accounts will be deemed to be added to the Certificate of Perfection (and You shall provide an updated, executed Certificate of Perfection regarding same upon completion of Your quarterly Certificate of Compliance). • Transactions with Affiliates. You will not directly or indirectly enter into or permit to exist any material transaction with any of Your Affiliates except for (i) transactions that are in the ordinary course of Your business, upon fair and reasonable terms that are no less favorable to You than would be obtained in an arm’s length transaction with a non-affiliated Person, (dii) amounts deposited transactions that are otherwise Permitted Investments and (iii) “transfer pricing”, “cost sharing” and “cost plus” arrangements in the ordinary course of business. • Subordinated Indebtedness. You will not prepay, redeem or otherwise satisfy in any manner prior to the scheduled repayment thereof any Subordinated Indebtedness (other than the Advances and except for conversion of any Subordinated Indebtedness into Deposit Accounts specially equity securities and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for You or Your Subsidiaries and such Deposit Accounts are solely under the control payment of cash in lieu of the respective company providing the payroll and employee benefit payment services and provided issuance for fractional shares upon any such amounts do not exceed two months of payroll and employee benefit paymentsconversion), and (e) Deposit Accounts used solely and exclusively for employee benefitsYou shall not make or permit any payment on any Subordinated Indebtedness, including, without limitation, to hold flexible spending account withholdings or amounts in respect of other Section 125 Plans. Such agreements to perfect Our lien shall be in form and substance satisfactory to Us and shall cause the depositary bank or securities intermediary to comply at all times with instructions from Us to such depositary bank or securities intermediary directing the disposition of funds from time to time credited to such Deposit Account or account holding Investment Property, without Your further consent. The parties acknowledge that upon the occurrence and during the continuance of an Event of Default We may give instructions and cause the depository bank or securities intermediary to withhold any withdrawal rights, We agree that We will not give any such instructions or withhold any withdrawal rights from You, unless an Event of Default has occurred and is continuing. We also agree to rescind instructions and any requests to withhold Your withdrawal rights mentioned in the foregoing sentences if: (a) the Event of Default upon which the instructions or request to withhold Your withdrawal rights was issued has been waived in accordance with except under the terms of the Loan Documentssubordination, and (b) no additional Event of has occurred and intercreditor, or other similar agreement to which such Subordinated Indebtedness is continuing prior subject, or amend any provision in any document relating to the date such rescission notice is delivered Subordinated Indebtedness which would increase the amount thereof or is reasonably expected adversely affect the subordination thereof to occur on or immediately after the date such rescission notice is deliveredSecured Obligations owed to Us.
Appears in 1 contract
Samples: Loan and Security Agreement
Deposit and Investment Accounts. You will not maintain, nor permit any of Your Restricted Subsidiaries to maintain, any Deposit Accounts or accounts holding Investment Property owned by You (or such Restricted Subsidiaries) except (a) accounts identified in Exhibit C, as updated from time to time, (b) Deposit Accounts or accounts holding Investment Property holding amounts deposited in to cash-collateralize letters of credit to the extent the Lien on such cash collateral is permitted hereunder, (c) other accounts with respect to which We have a perfected Lien, (d) amounts deposited into Deposit Accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for You or Your Restricted Subsidiaries and such Deposit Accounts are solely under the control of the respective company providing the payroll and employee benefit payment services and provided such amounts do not exceed two months of payroll and employee benefit payments, and (e) Deposit Accounts used solely and exclusively for employee benefits, including, without limitation, to hold flexible spending account withholdings or amounts in respect of other Section 125 Plans. Notwithstanding the foregoing, You may maintain the Deposit Accounts and the accounts holding Investment Property listed on Exhibit C, in which We may not have a perfected Lien, so long as (i) You use commercially reasonable efforts to obtain necessary agreements to perfect Our Lien in said accounts within five (5) Business Days after the Closing Date and (ii) in any event, within fifteen (15) Business Days after the Closing Date, such accounts have been closed or You have provided all necessary agreements to perfect Our Lien in said accounts. Such agreements to perfect Our lien shall be in form and substance satisfactory to Us and shall cause the depositary bank or securities intermediary to comply at all times with instructions from Us to such depositary bank or securities intermediary directing the disposition of funds from time to time credited to such Deposit Account or account holding Investment Property, without Your further consent. The parties acknowledge that that, prior to Your initial public offering, upon the occurrence and during the continuance of an Event of Default a Material Adverse Effect We may give instructions and cause the depository bank or securities intermediary to withhold any withdrawal rights, whether or not an Event of Default has occurred. We agree that We will not give any such instructions or withhold any withdrawal rights from You, unless either (y) prior to Gevo, Inc.’s initial public offering, a Material Adverse Effect has occurred and is continuing, or (z) an Event of Default has occurred and is continuing. We also agree to rescind instructions and any requests to withhold Your withdrawal rights mentioned in the foregoing sentences if: (a) the Event of Default or Material Adverse Effect upon which the instructions or request to withhold Your withdrawal rights was issued has been waived in accordance with the terms of the Loan Documents, and (b) no additional Event of Default or Material Adverse Effect has occurred and is continuing prior to the date such rescission notice is delivered or is reasonably expected to occur on or immediately after the date such rescission notice is delivered.. ð Transactions with Affiliates. You will not directly or indirectly enter into or permit to exist any material transaction between You and any of Your Affiliates except for: (a) transactions that are in the ordinary course of Your business, upon fair and reasonable terms that are no less favorable to You than would be obtained in an arm’s length transaction with a non-Affiliate; (b) transactions (including Investments) between You, on the one hand, and any of Your Subsidiaries or any other Person whose Stock You, directly or indirectly, have an ownership interest in, on the other hand, (c) transactions between You, on the one hand, and any Affiliate, on the other hand, so long as such transactions are fully disclosed to Us prior to the consummation thereof if they involve one or more payments by You or Your Subsidiaries in excess of $500,000 for any single transaction or series of related transactions; (d) so long as it has been approved by You or one of Your Subsidiaries’ board of directors or other applicable governing body, as the case may be, in accordance with applicable law, any indemnity provided for the benefit of executive officers, directors or managers of You or such Subsidiary; (e) so long as it has been approved by You or one of Your Subsidiaries’ board of directors or other applicable governing body, as the case may be, the payment of reasonable fees, compensation, or employee benefit arrangements to employees, officers, and outside directors of You or one of Your Subsidiaries in the ordinary course of business and consistent with industry practice; (f) Permitted Intercompany Advances; (g) transactions contemplated by the Acquisition Documents and/or the Contribution Documents, (h) transactions that are expressly permitted or contemplated by the terms of any of the Loan Documents or the Excluded Agreements, (i) transactions involving the licensing of Intellectual Property, and (j) the transactions set forth on Schedule 8. Gevo, Inc. – Loan Agreement 15
Appears in 1 contract
Deposit and Investment Accounts. You will not maintain, nor permit any of Your Subsidiaries to maintain, any Deposit Accounts or accounts holding Investment Property owned by You (or such Subsidiaries) except (a) accounts identified in Exhibit C, as updated from time to time, (b) Deposit Accounts or accounts holding Investment Property holding amounts deposited in to cash-collateralize letters of credit to the extent the Lien on such cash collateral is permitted hereunder, (c) other accounts with respect to which We have a perfected Lien, (d) amounts deposited into Deposit Accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for You or Your Subsidiaries and such Deposit Accounts are solely under the control of the respective company providing the payroll and employee benefit payment services and provided such amounts do not exceed two months of payroll and employee benefit payments, and (e) Deposit Accounts used solely and exclusively for employee benefits, including, without limitation, to hold flexible spending account withholdings or amounts in respect of other Section 125 Plans. Such agreements to perfect Our lien shall be in form and substance satisfactory to Us and shall cause the depositary bank or securities intermediary to comply at all times with instructions from Us to such depositary bank or securities intermediary directing the disposition of funds from time to time credited to such Deposit Account or account holding Investment Property, without Your further consent. The parties acknowledge that upon the occurrence and during the continuance of an Event of Default We may give instructions and cause the depository bank or securities intermediary to withhold any withdrawal rights, We agree that We will not give any such instructions or withhold any withdrawal rights from You, unless an Event of Default has occurred and is continuing. We also agree to rescind instructions and any requests to withhold Your withdrawal rights mentioned in the foregoing sentences if: (a) the Event of Default upon which the instructions or request to withhold Your withdrawal rights was issued has been waived in accordance with the terms of the Loan Documents, and (b) no additional Event of has occurred and is continuing prior to the date such rescission notice is delivered or is reasonably expected to occur on or immediately after the date such rescission notice is delivered. • Transactions with Affiliates. You will not directly or indirectly enter into or permit to exist any material transaction between You and any of Your Affiliates except for: (a) transactions that are in the ordinary course of Your business, upon fair and reasonable terms that are no less favorable to You than would be obtained in an arm’s length transaction with a non-Affiliate; (b) transactions between You or Your Subsidiaries, on the one hand, and any Affiliate, on the other hand, so long as such transactions are fully disclosed to Us prior to the consummation thereof if they involve one or more payments by You or Your Subsidiaries in excess of $100,000 for any single transaction or series of related transactions; (c) any transaction or series of related transactions entered into in the ordinary course of business between You, on the one hand, and any of Your Subsidiaries, on the other hand or any transactions that are expressly permitted under this Agreement, (d) so long as it has been approved by You or one of Your Subsidiaries’ board of directors or other applicable governing body, as the case may be, in accordance with applicable law, any indemnity provided for the benefit of executive officers, directors or managers of You or such Subsidiary; (e) so long as it has been approved by You or one of Your Subsidiaries’ board of directors or other applicable governing body, as the case may be, the payment of reasonable fees, compensation, or employee benefit arrangements to employees, officers, and outside directors of You or one of Your Subsidiaries in the ordinary course of business and consistent with industry practice; (f) Permitted Intercompany Advances; (g) agreements between You and any Parent providing for, among other things, the payment to Parent of (i) management and oversight fees of up to $1,000,000 per fiscal year in connection with the management and oversight of You, (ii) marketing fees equal to up to two percent (2%) of Your total revenue, (iii) intellectual property licensing fees and technology fees of up to six percent (6%) of Your isobutanol revenues, and (iv) reasonable out-of-pocket expenses of Parent pursuant to any management, oversight, advisory, financing, underwriting, or placement agreement or in respect of other investment banking activities, including in connection with acquisitions or divestitures that are permitted by this Agreement; (h) transactions involving the payment of reasonable out-of-pocket expenses and costs (including, without limitation, the allocable portion of Parent’s compensation costs for employees of Parent during the actual time spent by such employees providing services to You) incurred by Parent or its shareholders or members in connection with providing services to You and Your Subsidiaries (including on the board of directors or other applicable governing body of Parent); (i) agreements for the non-exclusive licensing of intellectual property among Parent and any of its Subsidiaries for the purpose of the licensee thereof operating its business; (j) transactions among Parent and any of its Subsidiaries transferring (other than the Intellectual Property Collateral) and/or licensing intellectual property among such Persons; (k) transactions contemplated by the Acquisition Documents and/or the Contribution Documents, and (l) the transactions set forth on Schedule 8. • Anything in the Section entitled “Dividends and Distributions” hereof to the contrary notwithstanding, to the extent any of the payments that are permitted to be made pursuant to this Section are in respect of obligations of a Parent, You and its or Your Subsidiaries shall be permitted to make a distribution to such Parent in the amount of any such obligation so as to provide such Parent with a source of funding for such payment.
Appears in 1 contract
Samples: And Security Agreement
Deposit and Investment Accounts. You will not maintain, nor permit any of Your Subsidiaries to maintain, any Deposit Accounts or accounts holding Investment Property owned by You (or such Subsidiaries) except (a) accounts identified in Exhibit C, as updated from time to time, (b) Deposit Accounts or accounts holding Investment Property holding amounts deposited in to cash-collateralize letters of credit to the extent the Lien on such cash collateral is permitted hereunder, (c) other accounts with respect to which We have a perfected Lien, (d) amounts deposited into Deposit Accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for You or Your Subsidiaries and such Deposit Accounts are solely under the control of the respective company providing the payroll and employee benefit payment services and provided such amounts do not exceed two months of payroll and employee benefit payments, and (e) Deposit Accounts used solely and exclusively for employee benefits, including, without limitation, to hold flexible spending account withholdings or amounts in respect of other Section 125 Plans. Notwithstanding the foregoing, You may maintain the Deposit Accounts and the accounts holding Investment Property listed on Exhibit C in which We may not have a perfected Lien, so long as such Deposit Account or account holding Investment Property (a) is Gevo_0467-GC 16 maintained by Devco or (b) if maintained by Opco (i) You use commercially reasonable efforts to obtain necessary agreements to perfect Our Lien in said accounts within five (5) Business Days after the Closing Date and (ii) in any event, within thirty (30) Business Days after the Closing Date, such accounts have been closed or You have provided all necessary agreements to perfect Our Lien in said accounts. Such agreements to perfect Our lien shall be in form and substance satisfactory to Us and shall cause the depositary bank or securities intermediary to comply at all times with instructions from Us to such depositary bank or securities intermediary directing the disposition of funds from time to time credited to such Deposit Account or account holding Investment Property, without Your further consent. The parties acknowledge that upon the occurrence and during the continuance of an Event of Default a Material Adverse Effect We may give instructions and cause the depository bank or securities intermediary to withhold any withdrawal rights, whether or not an Event of Default has occurred We agree that We will not give any such instructions or withhold any withdrawal rights from You, unless either (y) a Material Adverse Effect has occurred and is continuing or (z) an Event of Default has occurred and is continuing. We also agree to rescind instructions and any requests to withhold Your withdrawal rights mentioned in the foregoing sentences if: (a) the Event of Default or Material Adverse Effect upon which the instructions or request to withhold Your withdrawal rights was issued has been waived in accordance with the terms of the Loan Documents, and (b) no additional Event of Default or Material Adverse Effect has occurred and is continuing prior to the date such rescission notice is delivered or is reasonably expected to occur on or immediately after the date such rescission notice is delivered.. ð Transactions with Affiliates. You will not directly or indirectly enter into or permit to exist any material transaction between You and any of Your Affiliates except for: (a) transactions that are in the ordinary course of Your business, upon fair and reasonable terms that are no less favorable to You than would be obtained in an arm’s length transaction with a non-Affiliate; (b) transactions between You or Your Subsidiaries, on the one hand, and any Affiliate, on the other hand, so long as such transactions are fully disclosed to Us prior to the consummation thereof if they involve one or more payments by You or Your Subsidiaries in excess of $100,000 for any single transaction or series of related transactions; (c) any transaction or series of related transactions entered into in the ordinary course of business between You, on the one hand, and any of Your Subsidiaries, on the other hand or any transactions that are expressly permitted under this Agreement, (d) so long as it has been approved by You or one of Your Subsidiaries’ board of directors or other applicable governing body, as the case may be, in accordance with applicable law, any indemnity provided for the benefit of executive officers, directors or managers of You or such Subsidiary; (e) so long as it has been approved by You or one of Your Subsidiaries’ board of directors or other applicable governing body, as the case may be, the payment of reasonable fees, compensation, or employee benefit arrangements to employees, officers, and outside directors of You or one of Your Subsidiaries in the ordinary course of business and consistent with industry practice; (f) Permitted Intercompany Advances; (g) agreements between You and any Parent providing for, among other things, the payment to Parent of (i) management and oversight fees of up to $1,000,000 per fiscal year in connection with the management and oversight of You, (ii) marketing fees equal to up to two percent (2%) of Your total revenue, (iii) intellectual property licensing fees and technology fees of up to six percent (6%) of Your isobutanol revenues, and (iv) reasonable out-of-pocket expenses of Parent pursuant to any management, oversight, advisory, financing, underwriting, or placement agreement or in respect of other investment banking activities, including in connection with acquisitions or divestitures that are permitted by this Agreement; (h) transactions involving the payment of reasonable out-of-pocket expenses and costs (including, without limitation, the allocable portion of Parent’s compensation costs for employees of Parent during the actual time spent by such employees providing services to You) incurred by Parent or its shareholders or members in connection with providing services to You and Your Subsidiaries (including on the board of directors or other applicable governing body of Parent); (i) agreements for the non-exclusive licensing of intellectual property among Parent and any of its Subsidiaries for the purpose of the licensee thereof operating its business; (j) transactions among Parent and any of its Subsidiaries transferring (other than the Intellectual Property Collateral) and/or licensing intellectual property among such Persons; (k) transactions contemplated by the Acquisition Documents and/or the Contribution Documents, and (l) the transactions set forth on Schedule 8. Anything in the Section entitled “Dividends and Distributions” hereof to the contrary notwithstanding, to the extent any of the payments that are permitted to be made pursuant to this Section are in respect of obligations of a Parent, You and its or Your Subsidiaries shall be permitted to make a distribution to such Parent in the amount of any such obligation so as to provide such Parent with a source of funding for such payment. Gevo_0467-GC 17
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Deposit and Investment Accounts. You will not maintain, nor or permit any of Your Subsidiaries to maintain, any Deposit Accounts or accounts holding Investment Property owned by You (or such Subsidiaries) except (ai) accounts identified in the Certificate of Perfection attached as Exhibit CC with respect to which We have a perfected security interest, as updated from time to time, and (b) Deposit Accounts or accounts holding Investment Property holding amounts deposited in to cash-collateralize letters of credit to the extent the Lien on such cash collateral is permitted hereunder, (cii) other accounts with respect to which We have a perfected Lien, (d) amounts deposited into security interest. You will give Us prior written notice of the creation of any Deposit Accounts specially or accounts holding Investment Property. • Transactions with Affiliates. You will not directly or indirectly enter into or permit to exist any material transaction with any of Your Affiliates except for (i) transactions that are in the ordinary course of Your business, upon fair and exclusively used for payroll, payroll taxes and other employee wage and benefit payments reasonable terms that are no less favorable to You than would be obtained in an arm’s length transaction with a non-affiliated Person or for You or otherwise approved by a majority of Your Subsidiaries and such Deposit Accounts are solely under the control disinterested directors in discharge of the respective company providing the payroll and employee benefit payment services and provided such amounts do not exceed two months of payroll and employee benefit paymentstheir fiduciary duties, and (eii) Deposit Accounts used solely and exclusively for employee benefitsequity or unsecured bridge financings with Your existing investors or their Affiliates that are otherwise permitted under this Agreement, including, without limitation, to hold flexible spending account withholdings or amounts constituting (in respect the case of other Section 125 Plans. Such agreements to perfect Our lien shall be in form and substance satisfactory bridge financings) Subordinated Indebtedness as evidenced by a subordination agreement on terms acceptable to Us and shall cause the depositary bank or securities intermediary to comply at all times with instructions from Us to such depositary bank or securities intermediary directing the disposition of funds from time to time credited to such Deposit Account or account holding Investment Property, without Your further consentin Our reasonable discretion. The parties acknowledge that upon the occurrence and during the continuance of an Event of Default We may give instructions and cause the depository bank or securities intermediary to withhold any withdrawal rights, We agree that We • Subordinated Indebtedness. You will not give prepay, redeem or otherwise satisfy in any such instructions manner prior to the scheduled repayment thereof any Indebtedness (other than the Advances), and You shall not make or withhold permit any withdrawal rights from Youpayment on any Subordinated Indebtedness, unless an Event of Default has occurred and is continuing. We also agree to rescind instructions and any requests to withhold Your withdrawal rights mentioned in the foregoing sentences if: (a) the Event of Default upon which the instructions or request to withhold Your withdrawal rights was issued has been waived in accordance with except under the terms of the Loan Documentssubordination, and (b) no additional Event of has occurred and intercreditor, or other similar agreement to which such Subordinated Indebtedness is continuing prior subject, or amend any provision in any document relating to the date such rescission notice is delivered Subordinated Indebtedness which would increase the amount thereof or is reasonably expected adversely affect the subordination thereof to occur on or immediately after the date such rescission notice is deliveredSecured Obligations owed to Us.
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