Operating Accounts. (a) Maintain its and its Subsidiaries’, if any, domestic depository, operating accounts and securities accounts with Senior Lender and Senior Lender’s affiliates (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser) with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding the foregoing, (A) EMEA shall be permitted to maintain its existing deposit accounts with (i) Standard Chartered Bank (the “Standard Accounts”), provided that the aggregate maximum balance of such Standard Accounts does not exceed Twenty Five Thousand Dollars ($25,000) at any time, and (ii) Commerzbank (the “Commerzbank Accounts”), provided that the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion), all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion; (b) Provide Purchaser five (5) days prior-written notice before establishing any Collateral Account at or with any bank or financial institution other than Senior Lender or Senior Lender’s Affiliates. For each Collateral Account that Borrower at any time maintains in the United States or the United Kingdom, Borrower shall cause the applicable bank or financial institution (other than Senior Lender) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect Purchaser’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of Purchaser. The provisions of the previous sentence shall not apply to the Standard Accounts, the Commerzbank Accounts, deposit accounts exclusively used for payroll, payroll Taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser by Borrower as such.
Appears in 1 contract
Sources: Note Purchase Agreement (Global Telecom & Technology, Inc.)
Operating Accounts. (ai) Maintain substantially all of its and its Domestic Subsidiaries’, if any, domestic depositorydepository accounts, domestic operating accounts (other than deposit accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees) with Bank, and, (ii) within thirty (30) days after the Effective Date, establish a domestic securities accounts account with Senior Lender and Senior LenderBank’s affiliates (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser) with all excess domestic funds maintained at or invested through Senior Lender Bank or an affiliate of Senior Lender Bank; provided, that Borrower may maintain (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%x) of the dollar value of Borrower’s and Guarantor’s its existing accounts at all financial institutions Bank of America or its affiliates (the “Bank of America Accounts”) to facilitate its treasury operations, in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable a maximum amount not to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding the foregoing, (A) EMEA shall be permitted to maintain its existing deposit accounts with exceed (i) Standard Chartered Bank from the Effective Date through the date that is 150 days after the Effective Date, Five Million Dollars ($5,000,000); and (ii) from the “Standard Accounts”)date that is 151 days after the Effective Date and thereafter, provided that the aggregate maximum balance of such Standard Accounts does not exceed Twenty Two Million Five Hundred Thousand Dollars ($25,000) at any time, 2,500,000); and (iiy) Commerzbank (its existing Deposit Account at Bank of America or its affiliate which contains cash collateral securing the “Commerzbank Accounts”)Existing Bank of America L/C, provided that the aggregate in a maximum balance of such Commerzbank Accounts does amount not to exceed One Million Dollars ($1,000,000) at any time; (the “Bank of America Cash Collateral Deposit Account”). Subject to the next sentence, amounts in excess of the amounts listed in the foregoing clauses (i) and (Bii) no later than seventyof clause (x) in each respective period shall be promptly transferred to an account of Borrower maintained at Bank. Notwithstanding the foregoing, up to forty-five nine percent (7549%) days after of Borrower’s cash and Cash Equivalents located in the Initial Closing Date United States in excess of Thirty Five Million Dollars ($35,000,000) may be maintained at or such later date as Purchaser shall determineinvested through domestic depository accounts, in its sole but reasonable discretion)domestic operating accounts and/or domestic securities accounts (collectively, all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained the “Other Accounts”) at financial institutions located in the United States, other that Senior Lender than Bank or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one an affiliate of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;Bank.
(b) Provide Purchaser Other than with respect to any replacements of the accounts set forth in clauses (x) or (y) of Section 6.8(a), provide Bank five (5) days prior-written notice before establishing any Collateral Account (including, without limitation, the Other Accounts) at or with any bank or financial institution other than Senior Lender Bank or Senior LenderBank’s Affiliates. For each Collateral Account that Borrower at any time maintains in (including, without limitation, the United States or the United KingdomOther Accounts), Borrower shall cause the applicable bank or financial institution (other than Senior LenderBank) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserBank’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of PurchaserBank; provided, that with respect to Collateral Accounts in existence on the Effective Date, such fully executed Control Agreements will be required to be delivered to Bank prior to the Initial Borrowing, as described in Section 3.2. The provisions of the previous sentence shall not apply to the Standard Accounts, the Commerzbank AccountsBank of America Cash Collateral Deposit Account, deposit accounts exclusively used for payroll, payroll Taxes taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser Bank by Borrower as suchsuch or up to five (5) Deposit Accounts with an average daily balance of less than $250,000.
Appears in 1 contract
Operating Accounts. (a) Maintain its all of Borrower’s and its Subsidiaries’’ Collateral Accounts as disclosed in the Perfection Certificate delivered on the Effective Date in accounts which are, if anyin the case of Collateral Accounts of Borrower and any Guarantor, domestic depository, operating accounts and securities accounts with Senior Lender and Senior Lender’s affiliates subject to a Control Agreement (and upon payment in full of subject to the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements Post Closing Letter) in favor of PurchaserCollateral Agent, except to the extent otherwise permitted under Section 6.6(c).
(b) with all excess domestic funds maintained Notwithstanding anything to the contrary in Section 6.6(a), Borrower and its Subsidiaries shall not maintain cash and Cash Equivalents, in the aggregate, totaling more than the following amounts in Borrower’s Collateral Accounts held at or invested through Senior Lender or an affiliate Bank of Senior Lender America, N.A., which are subject to a Control Agreement (and upon payment in full of subject to the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements Post Closing Letter) in favor of PurchaserCollateral Agent: (i) Ten Million Dollars ($10,000,000.00), which accounts shall represent at least one hundred percent (100%) of all times when the dollar aggregate value of Borrower’s cash and GuarantorCash Equivalents held in Borrower’s accounts Collateral Accounts at ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, which are subject to a Control Agreement (subject to the Post Closing Letter) in favor of Collateral Agent, is equal to or greater than Twenty-Five Million Dollars ($25,000,000.00) and (ii) Five Million Dollars ($5,000,000.00), at all financial institutions in times when the United States, and least sixty percent (60%) of the dollar aggregate value of Borrower’s cash and each Subsidiaries’ accounts Cash Equivalents held in Borrower’s Collateral Accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository▇▇▇▇▇▇▇ Lynch, operating and securities accounts with Senior Lender or an affiliate of Senior Lender ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, which are subject to a Control Agreement (and upon payment in full of subject to the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements Post Closing Letter) in favor of Purchaser). Notwithstanding the foregoingCollateral Agent, (A) EMEA shall be permitted to maintain its existing deposit accounts with (i) Standard Chartered Bank (the “Standard Accounts”), provided that the aggregate maximum balance of such Standard Accounts does not exceed Twenty is less than Twenty-Five Thousand Dollars ($25,000) at any time, and (ii) Commerzbank (the “Commerzbank Accounts”), provided that the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion25,000,000.00), all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;.
(bc) Provide Purchaser Borrower shall provide Collateral Agent five (5) days prior-days’ prior written notice before establishing Borrower or any of its Subsidiaries establishes any Collateral Account at or with any Person other than any bank or financial institution other than Senior Lender or Senior Lender’s Affiliatesthat is not disclosed in the Perfection Certificate delivered on the Effective Date, such Person to be acceptable to Collateral Agent in its reasonable discretion. For In addition, subject to the Post Closing Letter, for each Collateral Account that Borrower or any Guarantor, at any time maintains in the United States or the United Kingdommaintains, Borrower or such Guarantor shall cause the applicable bank or financial institution (other than Senior Lender) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserCollateral Agent’s Lien in such Collateral Account in accordance with the terms hereunder prior to the establishment of such Collateral Account, which Control Agreement may not be terminated without the prior written consent of PurchaserCollateral Agent. The provisions of the previous sentence shall not apply to the Standard Accounts, the Commerzbank Accounts, (1) deposit accounts exclusively used for payroll, payroll Taxes taxes and other employee wage and benefit payments to or for the benefit of Borrower’s ’s, or any of its Subsidiaries’, employees and identified to Purchaser Collateral Agent by Borrower as suchsuch in the Perfection Certificates, (2) deposit accounts securing Indebtedness described in clause (g) of the definition of Permitted Indebtedness, (3) the deposit account of Borrower described in Section 5(c) of the Perfection Certificate and ending in xxx3771 so long as amounts held in such account do not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) and (4) the “master account” of Borrower held at ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated described in Section 5(c) of the Perfection Certificate and ending in xxx03527 so long as such account is at all times a “zero-balance” account (collectively, the “Excluded Accounts”).
(d) Neither Borrower nor any of its Subsidiaries shall maintain any Collateral Accounts except Collateral Accounts maintained in accordance with Sections 6.6(a), (b) and (c).
Appears in 1 contract
Operating Accounts. (a) Maintain its and all of Borrower’s, any of its Subsidiaries’, if anyand any Guarantor’s operating accounts, domestic depository, operating depository accounts and securities accounts excess cash with Senior Lender and Senior LenderSVB or SVB’s affiliates (and upon payment in full of Affiliates; provided, however, notwithstanding the Senior Debtforegoing, as long as Borrower has, on or prior to February 10, 2023, transferred at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser) with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (6060.0%) of the dollar value of Borrower’s its cash and each Subsidiaries’ Cash Equivalent assets to its deposit accounts at all financial institutions worldwide. Any domestic Guarantor shall SVB, (i) during the period of time from February 10, 2023 through April 11, 2023, Borrower may maintain all depositoryup to forty percent (40.0%) of its cash and Cash Equivalent assets in its deposit accounts at HSBC Bank USA, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable National Association for which Borrower has delivered to Purchaser who have entered into Agent a satisfactory Control Agreements Agreement in favor of Purchaser). Notwithstanding the foregoingAgent over such accounts, (Aii) EMEA shall be permitted during the period of time from February 10, 2023 through March 12, 2023, Borrower may maintain up to maintain its existing deposit accounts with Ten Thousand Dollars (i$10,000) Standard Chartered in Borrower’s account no. xxxxxxxx1869 at Bank of America (the “Standard AccountsBofA Account”), provided that the aggregate maximum balance of such Standard Accounts does not exceed Twenty and (iii) Borrower may maintain up to Five Thousand Dollars ($25,0005,000) in its account ending in 071 at any time, and (ii) Commerzbank HSBC Canada (the “Commerzbank AccountsPermitted HSBC Account”), provided that the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion), all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;.
(b) Provide Purchaser In addition to the foregoing, Borrower, any Subsidiary of Borrower and any Guarantor, shall obtain any business credit card, letter of credit and cash management services exclusively from SVB.
(c) In addition to and without limiting the restrictions in (a), Borrower shall provide Agent five (5) days prior-prior written notice before establishing any Collateral Account at or with any bank or financial institution other than Senior Lender SVB or Senior LenderSVB’s Affiliates. For each Collateral Account (other than the BofA Account and the Permitted HSBC Account, in each case, subject to the requirements set forth in subsection (a)), that Borrower at any time maintains in the United States or the United Kingdommaintains, Borrower shall cause the applicable bank or financial institution (other than Senior LenderSVB) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserAgent’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of Purchaser. The provisions of the previous sentence shall not apply to the Standard Accounts, the Commerzbank Accounts, deposit accounts exclusively used for payroll, payroll Taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser by Borrower as suchLenders.”
Appears in 1 contract
Sources: Loan and Security Agreement (MedAvail Holdings, Inc.)
Operating Accounts. (a) Maintain its all of Borrower’s and its Subsidiaries’, if any, domestic depository, ' (other than MSC and Selecta Russia) operating accounts Collateral Accounts and securities accounts excess cash with Senior Lender Bank and Senior LenderBank’s affiliates (and upon payment Affiliates in full of the Senior Debt, at financial institutions acceptable Collateral Accounts which are subject to Purchaser who have entered into a Control Agreements Agreement in favor of PurchaserCollateral Agent. In addition, Borrower shall obtain any letters of credit and cash management services (other than business credit cards) exclusively from Bank.
(b) Notwithstanding anything to the contrary in Section 6.6(a), Borrower (individually and not on a consolidated basis) shall at all times have on deposit in operating, depository and securities Collateral Accounts maintained with all excess domestic funds maintained at Bank or invested through Senior Lender or an affiliate of Senior Lender (and upon payment Bank's Affiliates, in full of the Senior Debt, at financial institutions acceptable Collateral Accounts which are subject to Purchaser who have entered into a Control Agreements Agreement in favor of Purchaser)Collateral Agent, which accounts shall represent at least cash in an amount equal to the lesser of (i) one hundred percent (100100.0%) of the dollar Dollar value of all of Borrower’s and Guarantor’s accounts 's consolidated cash, including any Subsidiaries', Affiliates', or related entities' (excluding Selecta Russia) cash, in the aggregate, at all financial institutions in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding the foregoing, (A) EMEA shall be permitted to maintain its existing deposit accounts with (i) Standard Chartered Bank (the “Standard Accounts”), provided that the aggregate maximum balance of such Standard Accounts does not exceed Twenty Five Thousand Dollars ($25,000) at any timeinstitutions, and (ii) Commerzbank one hundred five percent (105.0%) of the “Commerzbank Accounts”Dollar amount of the then-outstanding Obligations. Bank may, upon consultation with Collateral Agent and the Required Lenders, restrict withdrawals or transfers by or on behalf of Borrower that would violate this Section 6.6(b), provided that the aggregate maximum balance regardless of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion), all accounts held by any whether an Event of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;Default exists.
(bc) Provide Purchaser Borrower shall provide Collateral Agent five (5) days prior-days’ prior written notice before establishing Borrower or any of its Subsidiaries establishes any Collateral Account at or with any bank or financial institution Person other than Senior Lender Bank or Senior Lender’s its Affiliates. For In addition, for each Collateral Account that Borrower or any of its Subsidiaries, at any time maintains in the United States or the United Kingdommaintains, Borrower or such Subsidiary shall cause the applicable bank or financial institution (other than Senior Lender) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserCollateral Agent’s Lien in such Collateral Account in accordance with the terms hereunder prior to the establishment of such Collateral Account, which Control Agreement may not be terminated without the prior written consent of PurchaserCollateral Agent or upon the satisfaction in full in cash of the Obligations (other than inchoate indemnity obligations). The provisions of the previous sentence shall not apply to the Standard Accounts, the Commerzbank Accounts, deposit accounts exclusively used for payroll, payroll Taxes taxes and other employee wage and benefit payments to or for the benefit of Borrower’s ’s, or any of its Subsidiaries’, employees and identified to Purchaser Collateral Agent by Borrower as suchsuch in the Perfection Certificates.
(d) Neither Borrower nor any of its Subsidiaries shall maintain any Collateral Accounts except Collateral Accounts maintained in accordance with Sections 6.6.
Appears in 1 contract
Sources: Loan and Security Agreement (Selecta Biosciences Inc)
Operating Accounts. (a) Maintain its and its Subsidiaries’, if any, domestic depository, operating accounts and securities accounts with Senior Lender and Senior Lender’s affiliates (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser Required Purchasers who have entered into Control Agreements in favor of PurchaserAgent) with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser Required Purchasers who have entered into Control Agreements in favor of PurchaserAgent), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser Required Purchasers who have entered into Control Agreements in favor of PurchaserAgent). .
(b) Notwithstanding the foregoing, (A) EMEA shall be permitted to maintain its existing deposit accounts with (i) Standard Chartered Bank (the “Standard Accounts”), provided that the aggregate maximum balance of such Standard Accounts does not exceed Twenty Five Thousand Dollars ($25,000) at any time, and (ii) Commerzbank (the “Commerzbank Accounts”), provided that the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time, or (ii) such other commercially reasonably banks, including RBS, Ulster and Westminister, provided that the aggregate maximum balance of such bank accounts does not exceed Two Million Dollars ($2,000,000); and (B) TiNet and its Foreign Subsidiaries shall be permitted to maintain those deposit accounts in existence on the Restatement Date, provided that the aggregate maximum balance of such accounts does not exceed Seven Million] Dollars ($7,000,000) at any time; (C) no later than seventy-five one hundred (75100) days after the Initial Closing Restatement Date (or such later date as Purchaser Required Purchasers shall determine, in its their sole but reasonable discretion), all accounts held by any of PEIRLNT Network and its Domestic Subsidiaries, PEUSAif any, PEINC, and PELTD maintained at financial institutions other that than Senior Lender or Senior Lender’s Affiliates shall be have been (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser Agent and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to PurchaserAgent, in its reasonable discretion;.
(bc) Provide Purchaser Purchasers five (5) days prior-written notice before establishing any Collateral Account at or with any bank or financial institution other than Senior Lender or Senior Lender’s Affiliates. For each Collateral Account that Borrower at any time maintains in the United States or the United Kingdom, Borrower shall cause the applicable bank or financial institution (other than Senior Lender) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserAgent’s and Purchasers’ Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of PurchaserAgent. The provisions of the previous sentence shall not apply to the Standard Accounts, the Commerzbank Accounts, deposit accounts exclusively used for payroll, payroll Taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser Purchasers by Borrower as such.
Appears in 1 contract
Sources: Note Purchase Agreement (Global Telecom & Technology, Inc.)
Operating Accounts. (a) Maintain As of the date that is seven (7) calendar days after the Effective Date, and thereafter, maintain its primary operating accounts with Bank. In addition, as of the date that is seven (7) calendar days after the Effective Date, and its Subsidiaries’thereafter, if anyBorrower's domestic Subsidiaries shall maintain their domestic operating accounts with Bank. In addition, domestic depositoryas a condition to the Bank making any Term Advance after the initial Term Advance to refinance the obligations under the Lighthouse Agreements, Borrower shall maintain unrestricted cash or securities at Bank or SVB Securities, in an amount equal or greater than Three Million Four Hundred Sixty Thousand Dollars ($3,460,000.00) in the aggregate, and shall continue to maintain such minimum amount as long as such Term Advance or Term Advances are outstanding, provided that, on the earlier of September 30, 2006 and the Capitalization Event, such minimum amount (inclusive of the $3,460,000.00 referenced above) shall be an amount equal to or greater than the greater of (i) Ten Million Dollars ($10,000,000.00), and (ii) the aggregate amount of outstanding Obligations. Borrower may maintain non-primary operating accounts and securities accounts with Senior Lender and Senior Lender’s affiliates (and upon payment in full of the Senior Debtother financial institutions, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser) provided that Borrower complies with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding the foregoing, (A) EMEA shall be permitted to maintain its existing deposit accounts with (i) Standard Chartered Bank (the “Standard Accounts”), provided that the aggregate maximum balance of such Standard Accounts does not exceed Twenty Five Thousand Dollars ($25,000) at any time, and (ii) Commerzbank (the “Commerzbank Accounts”), provided that the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion), all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;Section 6.6(b) below.
(b) Provide Purchaser Bank five (5) days prior-prior written notice before establishing any Collateral Account at or with any bank or financial institution other than Senior Lender Bank or Senior Lender’s its Affiliates. For In addition, for each Collateral Account that Borrower at any time maintains in the United States or the United Kingdommaintains, Borrower shall cause the applicable bank or financial institution (other than Senior LenderBank) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect Purchaser’s Bank's Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of Purchaserhereunder. The provisions of the previous sentence shall not apply to the Standard Accounts, the Commerzbank Accounts, (i) deposit accounts exclusively used for payroll, payroll Taxes taxes and other employee wage and benefit payments to or for the benefit of Borrower’s 's employees and identified to Purchaser Bank by Borrower as such, or (ii) accounts with Comerica (provided that the exclusion in (ii) shall only apply until the date that is seven (7) calendar days after the Effective Date).
Appears in 1 contract
Sources: Loan and Security Agreement (NxStage Medical, Inc.)
Operating Accounts. (a) Maintain Subject to the following sentence, maintain all of its and all of its Subsidiaries’’ operating accounts, if any, domestic depository, operating accounts and securities accounts with Senior Lender and Senior Lender’s affiliates (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser) with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United StatesCash Collateral Account, and least sixty percent (60%) of the dollar value of Borrowerexcess cash with Bank and Bank’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depositoryAffiliates, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding the foregoing, (A) EMEA provided that Borrower shall be permitted to maintain its existing deposit accounts account with (i) Standard Chartered Bank (Stifel, as disclosed on the “Standard Accounts”)Perfection Certificate, provided that the aggregate maximum balance cash on deposit in such account shall be swept into an operating account in the name of such Standard Accounts does not exceed Twenty Five Thousand Dollars Borrower with Bank on a monthly basis ($25,000the “Permitted Account”). In addition to the foregoing, Borrower shall at all times have on deposit in accounts maintained in the name of Borrower with Bank, cash in an amount equal to the lesser of (i) one hundred percent (100.0%) of the Dollar value of Borrower’s consolidated cash, including any Subsidiaries’, Affiliates’, or related entities’ cash, in the aggregate, at any timeall financial institutions, and (ii) Commerzbank one hundred ten percent (110.0%) of the “Commerzbank Accounts”), provided then-outstanding Obligations of Borrower to Bank (other than Obligations under Bank Services Agreements that the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion), all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender are cash collateralized in accordance with the Intercreditor Section 4.1 of this Agreement). Bank may restrict withdrawals or transfers by or on behalf of Borrower that would violate this Section 6.6(a), in form regardless of whether an Event of Default exists at such time. Borrower shall also conduct all of its primary banking with Bank and substance acceptable to PurchaserBank’s Affiliates, in its reasonable discretion;including, without limitation, letters of credit and business credit cards.
(b) Provide Purchaser Bank five (5) days prior-prior written notice before establishing any Collateral Account at or with any bank or financial institution other than Senior Lender Bank or Senior LenderBank’s Affiliates. For each Collateral Account that Borrower at any time maintains in the United States or the United Kingdommaintains, Borrower shall cause the applicable bank or financial institution (other than Senior LenderBank) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserBank’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of PurchaserBank. The provisions of the previous sentence shall not apply to (i) the Standard AccountsPermitted Account, the Commerzbank Accounts, and (ii) deposit accounts exclusively used for payroll, payroll Taxes taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser Bank by Borrower as such.
Appears in 1 contract
Sources: Loan and Security Agreement (Trevi Therapeutics, Inc.)
Operating Accounts. (a) Maintain its all of Borrower's primary operating, depository and its Subsidiaries’, if any, domestic depository, operating accounts and securities securities/investment accounts with Senior Lender SVB and Senior Lender’s affiliates (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser) with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser), SVB's Affiliates which accounts shall represent (i) at all times when there are no outstanding Term Loan Advances hereunder and no outstanding Advances or Growth Capital Advances under the Senior Loan Agreement, at least one hundred thirty percent (10030%) of the dollar value of Borrower’s 's and Guarantor’s its Subsidiaries' accounts at all financial institutions (excluding cash ear-marked for Borrower's and its Subsidiaries' Sitter Payables), and (ii) at all times when there are either (x) any outstanding Term Loan Advances owing from Borrower to the Lenders hereunder or (y) any outstanding Advances or Growth Capital Advances (as each is defined in the United StatesSenior Loan Agreement) owing from Borrower to SVB under the Senior Loan Agreement, and at least sixty fifty-one percent (6051%) of the dollar value of Borrower’s 's and each its Subsidiaries’ ' accounts at all financial institutions worldwide(excluding cash ear-marked for Borrowers' and its Subsidiaries' Sitter Payables). Any domestic Guarantor shall maintain all depositoryIn addition, operating and securities accounts with Senior Lender any disbursements, transfers, distributions or an affiliate other movements of Senior Lender (and upon payment in full cash out of the Senior DebtUS Bank Account, must flow through Borrower's accounts at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser)Bank. Notwithstanding the foregoing, (A) EMEA Borrower shall be permitted to maintain its existing deposit accounts with payment processors that service Borrower's marketplace platform, such as PayPal and Stripe (the "Payment Processing Accounts"), so long as Borrower has provided Agent prior written notice of such account(s) and the aggregate amount of cash in such accounts does not exceed the lesser of (i) Standard Chartered Bank (the “Standard Accounts”), provided that the aggregate maximum balance of such Standard Accounts does not exceed Twenty Five Thousand Fifty Million Dollars ($25,000) at any time50,000,000), and (ii) Commerzbank (the “Commerzbank Accounts”)maximum aggregate amount of Sitter Payables, provided that the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion), all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;.
(b) Provide Purchaser Agent five (5) days prior-prior written notice before establishing any Collateral Account at or with any bank or financial institution other than Senior Lender SVB or Senior Lender’s SVB's Affiliates. For In addition, for each Collateral Account that Borrower at any time opens or maintains in the United States or the United Kingdom(other than accounts at SVB), Borrower shall cause the applicable bank or financial institution (other than Senior LenderSVB) at or with which any such Collateral Account is opened or maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect Purchaser’s Agent's Lien in such Collateral Account in accordance with the terms hereunder hereunder, which Control Agreement may not be terminated without the prior written consent of Purchaserthe Agent. The provisions of the previous sentence shall not apply to the Standard Payment Processing Accounts, the Commerzbank Accounts, and deposit accounts exclusively used for payroll, payroll Taxes taxes, and other employee wage and benefit payments to or for the benefit of Borrower’s 's employees and identified to Purchaser Agent by Borrower as such.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Nebula Caravel Acquisition Corp.)
Operating Accounts. (a) Maintain its and its Subsidiaries’, if any, domestic depository, operating accounts and securities accounts with Senior Lender and Senior Lender’s affiliates (and upon payment in full of the Senior Debt, Loan Parties’ Collateral Accounts at financial depositary institutions acceptable that have agreed to Purchaser who have entered into execute Control Agreements in favor of Purchaser) Collateral Agent with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full respect to such Collateral Accounts. The provisions of the Senior Debt, at financial institutions acceptable previous sentence shall not apply to Purchaser who have entered into Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding the foregoing, (A) EMEA shall be permitted to maintain its existing deposit accounts with (i) Standard Chartered Bank Deposit Accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Loan Party’s employees; provided that the amount deposited in all such accounts shall not exceed the aggregate amount reasonably expected to be due and payable for the next two (2) succeeding pay periods, (ii) ▇▇▇▇▇ cash accounts with an aggregate maximum daily balance at any time not in excess of $10,000, (iii) any Deposit Accounts holding only cash and Cash Equivalents or of Foreign Subsidiaries with an aggregate maximum daily balance for all such accounts, as of the end of each calendar month, not in excess of $2,000,000 and, (iv) sales tax accounts not in excess of $500,000 and (v) escrow accounts, or fiduciary or trust accounts, in each case for the benefit of unaffiliated third parties; in each case, as identified to Collateral Agent by Borrower as such in the Perfection Certificate (collectively, clauses (i) through (v), “Standard Excluded Accounts”), provided that the aggregate maximum balance of such Standard Accounts does not exceed Twenty Five Thousand Dollars ($25,000) at any time, and (ii) Commerzbank (the “Commerzbank Accounts”), provided that the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion), all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;.
(b) Provide Purchaser five Loan Parties shall provide Collateral Agent ten (510) days prior-days’ prior written notice before establishing any Loan Party establishes any Collateral Account at or with any bank or financial institution other than Senior Lender or Senior Lender’s AffiliatesAccount. For In addition, for each Collateral Account that Borrower any Loan Party, at any time maintains in the United States or the United Kingdommaintains, Borrower such Loan Party shall cause the applicable bank or financial institution (other than Senior Lender) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserCollateral Agent’s Lien in such Collateral Account (held for the ratable benefit of the Secured Parties) in accordance with the terms hereunder which Control Agreement may not be terminated without prior to the prior written consent establishment of Purchasersuch Collateral Account. The provisions of the previous sentence shall not apply to the Standard Excluded Accounts, the Commerzbank Accounts, deposit accounts exclusively used for payroll, payroll Taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser by Borrower as such.
(c) No Loan Party nor any Guarantor shall maintain any Collateral Accounts except Collateral Accounts maintained in accordance with this Section 6.6.
Appears in 1 contract
Sources: Loan and Security Agreement (Apollo Endosurgery, Inc.)
Operating Accounts. (a) Maintain its primary and its Subsidiaries’’ primary operating, if any, domestic depository, operating and securities/investment accounts with Bank and Bank’s Affiliates, provided that accounts in the name of Borrower maintained with Bank and Bank’s Affiliates shall represent at least seventy-five percent (75.0%) of the aggregate dollar value of Borrower’s and such Subsidiaries’ accounts at all financial institutions. In addition, Borrower shall conduct seventy-five percent (75.0%) of its cash management, letters of credit and foreign exchange banking with Bank, provided Bank has the ability to offer such products on competitive terms for current market conditions.
(b) In addition to and without limiting the restrictions in 6.6(a), Borrower shall at all times have on deposit in depository and/or securities accounts in the name of Borrower with Senior Lender Bank and Senior LenderBank’s affiliates Affiliates unrestricted and unencumbered (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements other than Liens in favor of PurchaserBank) cash in an aggregate amount equal to the greater of (i) Forty-Eight Million Dollars ($48,000,000.00) and (ii) the Monthly Cash Burn Amount (the “Minimum Account Threshold”). In the event that at any time Borrower’s aggregate balances in said depository and/or securities accounts are less than the Minimum Account Threshold, Borrower shall, promptly (within one (1) Business Day) place on deposit and thereafter maintain at all times as cash collateral in a segregated money market bank account in the name of Borrower and maintained with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender Bank (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser“Pledge Account”), which accounts shall represent cash in an amount equal to at least one hundred percent (100100.0%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (60%) outstanding principal balance of the dollar value of Borrower’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding the foregoing, (A) EMEA shall be permitted to maintain its existing deposit accounts with (i) Standard Chartered Bank Term A Loan (the “Standard AccountsPledge Account Requirement”). Provided no Event of Default then exists, provided the cash in the Pledge Account shall remain until the time at which Bank confirms that the aggregate maximum balance of such Standard Accounts does not exceed Twenty Five Thousand Dollars ($25,000) at any time, and (ii) Commerzbank (the “Commerzbank Accounts”), provided that the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion), all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such transferred Borrower has delivered evidence satisfactory to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, Bank in its reasonable discretion;discretion that Borrower has maintained the Minimum Account Threshold for a period of thirty consecutive (30) days. For the avoidance of doubt, notwithstanding Section 8.2(a), failure by Borrower to maintain the Minimum Account Threshold shall not, in and of itself, constitute an Event of Default, provided, that Borrower complies with the Pledge Account Requirement as provided in this Section 6.6(b).
(bc) Provide Purchaser Bank five (5) days prior-prior written notice before establishing any Collateral Account at or with any bank or financial institution other than Senior Lender Bank or Senior LenderBank’s Affiliates. For each Collateral Account that Borrower at any time maintains in the United States or the United Kingdommaintains, Borrower shall cause the applicable bank or financial institution (other than Senior LenderBank) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserBank’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of PurchaserBank. The provisions of the previous sentence shall not apply to the Standard Accounts, the Commerzbank Accounts, deposit accounts exclusively used for payroll, payroll Taxes taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser Bank by Borrower as such.
Appears in 1 contract
Operating Accounts. (a) Maintain all of its and all of its Subsidiaries’, if any, domestic depository, ’ operating and other deposit accounts and securities accounts with Senior Lender Bank and Senior LenderBank’s affiliates (and upon payment in full of the Senior DebtAffiliates; provided, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser) with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding the foregoing, (A) EMEA that Borrower shall be permitted to maintain its existing deposit accounts with (i) Standard Chartered financial institutions other than Bank and Bank’s Affiliates, (the “Standard Existing Accounts”), provided that so long as (X) such Existing Accounts are subject to Control Agreements in favor of Bank and in form and substance reasonably acceptable to Bank, subject to Section 6.12(c); (Y) the maximum aggregate maximum daily balance of in such Standard Existing Accounts does not at any time exceed Twenty the lesser of (i) Five Million Dollars ($5,000,000.00); and (ii) twenty percent (20%) of Borrower total cash; and (Z) on or before September 30, 2018, such Existing Accounts are closed, with the proceeds of such Existing Accounts transferred to an account of Borrower maintained at Bank; provided, further, that Borrower shall be permitted to maintain, and the foregoing requirement shall not apply to, (i) the Excluded Accounts (as hereinafter defined); (ii) one or more ▇▇▇▇▇ cash accounts (the “▇▇▇▇▇ Cash Accounts”), so long as the maximum aggregate daily balance in all such ▇▇▇▇▇ Cash Accounts does not at any time exceed Fifty Thousand Dollars ($25,000) at any time, 50,000.00); and (iiiii) Commerzbank one cash deposit account maintained at PJC (the “Commerzbank AccountsPJC Account”), provided that so long as the aggregate maximum balance of cash in such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion), all accounts held by any of PEIRL, PEUSA, PEINCPJC Account is promptly, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be in any event within two (i2) closedBusiness Days, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;Borrower maintained at Bank.
(b) Provide Purchaser Bank five (5) days prior-prior written notice before establishing any Collateral Account at or with any bank or financial institution other than Senior Lender Bank or Senior LenderBank’s Affiliates. For Subject to Section 6.12(c), for each Collateral Account that Borrower at any time maintains in (including, without limitation, the United States or the United KingdomExisting Accounts), Borrower shall cause the applicable bank or financial institution (other than Senior LenderBank) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserBank’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of PurchaserBank. The provisions of the previous sentence shall not apply to (i) the Standard ▇▇▇▇▇ Cash Accounts, ; (ii) the Commerzbank Accounts, PJC Account; (iii) deposit accounts exclusively used for Borrower’s credit cards; and (iv) deposit accounts exclusively used for payroll, payroll Taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser Bank by Borrower as suchsuch (such accounts being the “Excluded Accounts”).”
2.6 Section 12.1 (Successor and Assigns). Section 12.1 is amended in its entirety and replaced with the following:
Appears in 1 contract
Sources: Loan and Security Agreement (Gemphire Therapeutics Inc.)
Operating Accounts. (a) Maintain its Holdings’ and all of its Subsidiaries’, if any, domestic depository, ’ (excluding Immaterial Subsidiaries) primary operating and other primary deposit accounts and primary securities accounts with Senior Lender Bank and Senior LenderBank’s affiliates Affiliates at all times after the one (and upon payment in full 1) year anniversary of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser) Effective Date. Maintain the Designated Deposit Account with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts Bank at all financial institutions in times on and after the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiaries’ accounts at Effective Date. Holdings shall use good faith efforts to move all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, non-primary operating and other non-primary deposit accounts and non-primary securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding the foregoing, (A) EMEA shall be permitted to maintain its existing deposit excluding accounts with (i) Standard Chartered Bank (the “Standard Accounts”), provided that the aggregate maximum balance of such Standard Accounts does deposits not exceed Twenty Five exceeding Three Hundred Thousand Dollars ($25,000300,000) at any time, and (ii) Commerzbank (the “Commerzbank Accounts”), provided that the aggregate maximum balance of such Commerzbank Accounts does not exceed individually or One Million Five Hundred Thousand Dollars ($1,000,0001,500,000) at any time; in the aggregate) maintained by Holdings and its Subsidiaries (Bexcluding Immaterial Subsidiaries) no later than seventy-five (75) days after the Initial Closing Date (with banks or such later date as Purchaser shall determine, in its sole but reasonable discretion), all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at other financial institutions other that Senior Lender or Senior Lenderthan Bank and Bank’s Affiliates shall be to Bank and Bank’s Affiliates within one (i1) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one year of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;Effective Date.
(b) Provide Purchaser Bank five (5) days prior-days’ prior written notice before establishing any Collateral Account in the United States with a value in excess of Three Hundred Thousand Dollars ($300,000) at or with any bank or financial institution other than Senior Lender Bank or Senior LenderBank’s Affiliates. For each Collateral Account that Borrower at any time maintains in the United States or the United Kingdomwith a value in excess of Three Hundred Thousand Dollars ($300,000) that any Credit Party at any time maintains, Borrower shall cause the applicable bank or financial institution (other than Senior LenderBank) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserBank’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of PurchaserBank. The provisions of the previous sentence shall not apply to accounts constituting Excluded Assets. At no time shall the Standard Accounts, the Commerzbank Accounts, deposit accounts exclusively used for payroll, payroll Taxes and other employee wage and benefit payments Credit Parties maintain Collateral Accounts that are not subject to a Control Agreement in favor of Bank or for the benefit otherwise subject to a Lien in favor of Borrower’s employees and identified to Purchaser by Borrower as suchBank with aggregate deposits in excess of One Million Five Hundred Thousand Dollars ($1,500,000).
Appears in 1 contract
Operating Accounts. (a) Maintain its and all of Borrower’s, any of its Subsidiaries’’ (excluding MSC Subsidiaries), if anyand any Guarantor’s operating accounts, domestic depository, operating depository accounts and securities accounts excess cash with Senior Lender and Senior LenderSVB or SVB’s affiliates (and upon payment in full of the Senior DebtAffiliates; provided, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser) with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debthowever, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding notwithstanding the foregoing, (A) EMEA shall be permitted to Borrower and its Subsidiaries may maintain its existing deposit accounts with (i) Standard Chartered Bank Collateral Accounts outside of the United States and outside of SVB (the “Standard Foreign Accounts”), provided that ) so long as the aggregate maximum balance amount of such Standard Accounts does not exceed Twenty Five Thousand Dollars ($25,000) cash maintained at any time, and (ii) Commerzbank (the “Commerzbank Accounts”), provided that the aggregate maximum balance of such Commerzbank time in all Foreign Accounts taken together does not exceed One Million Dollars ($1,000,000) ). In addition to the foregoing, Borrower shall at any time; all times have on deposit in operating and (B) no later than seventy-five (75) days after depository accounts maintained in the Initial Closing Date (or such later date as Purchaser shall determinename of Borrower with SVB, cash in its sole but reasonable discretion), all accounts held by any an amount equal to the lesser of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closedone hundred percent (100.0%) of the Dollar value of Borrower’s consolidated cash, with including any Subsidiaries’, Affiliates’, or related entities’ cash, in the aggregate, at all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or financial institutions, and (ii) subject one hundred ten percent (110.0%) of the then-outstanding Obligations of Borrower to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with Agent and the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;Lenders hereunder.
(b) Provide Purchaser In addition to the foregoing, Borrower, any Subsidiary of Borrower and any Guarantor, shall obtain any business credit card, Letter of Credit, and cash management services exclusively from SVB.
(c) In addition to and without limiting the restrictions in (a), Borrower shall provide Agent five (5) days prior-prior written notice before establishing any Collateral Account at or with any bank or financial institution other than Senior Lender SVB or Senior LenderSVB’s Affiliates. For each Collateral Account that Borrower at any time maintains in the United States or the United Kingdommaintains, Borrower shall cause the applicable bank or financial institution (other than Senior LenderSVB) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserAgent’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of Purchaserthe Lenders. The provisions of the previous sentence shall not apply to the Standard Accounts, the Commerzbank Accounts, (i) deposit accounts exclusively used for payroll, payroll Taxes taxes, and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser Agent and the Lenders by Borrower as such, or (ii) the Foreign Accounts.
Appears in 1 contract
Operating Accounts. (a) Maintain its and its Subsidiaries’, if any, domestic depository, operating accounts and securities accounts with Senior Lender and Senior Lender’s affiliates (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser) with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each its domestic U.S. Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts Collateral Accounts with Senior Lender Bank or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser)its Affiliates. Notwithstanding the foregoing, (Ax) EMEA shall be permitted at any time that Borrower’s aggregate Cash on deposit with Bank is greater than or equal to maintain its existing deposit accounts with one hundred twenty percent (i120%) Standard Chartered Bank of the outstanding amount of the Adjusted Obligations (such amount in excess of such percentage, the “Standard AccountsExcess Cash”), provided that the aggregate maximum balance of such Standard Excess Cash may be held in Collateral Accounts does not exceed Twenty Five Thousand Dollars ($25,000) at any time, and (ii) Commerzbank (the “Commerzbank Accounts”)financial institution, provided that such Collateral Accounts in the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any timeU.S. shall be subject to Control Agreements in favor of, and in form and content reasonably acceptable to, Collateral Agent; and (By) at all times when Borrower’s aggregate Cash on deposit with Bank is less than one hundred twenty percent (120%) of the outstanding amount of the Adjusted Obligations, Borrower may maintain no later more than seventyThree Million Euro (€3,000,000) in the aggregate in non-five (75) days after the Initial Closing Date (U.S. accounts not subject to Control Agreements, provided that amounts in excess of such amount shall be subject to Control Agreements, or such later date as Purchaser shall determinesimilar, in its sole but reasonable discretion), all accounts held by any of PEIRL, PEUSA, PEINCfavor of, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance content reasonably acceptable to, Collateral Agent. For the avoidance of doubt, Excess Cash held in non-U.S. accounts pursuant to Purchaserclause (x), in its reasonable discretion;above, need not be subject to a Control Agreement.
(b) Provide Purchaser Borrower shall provide Collateral Agent five (5) days prior-days’ prior written notice before establishing Borrower or any of its Subsidiaries establishes any Collateral Account at or with any bank or financial institution Person other than Senior Lender Bank or Senior Lender’s its Affiliates. For In addition, except as set forth in Section 6.6(a), above, for each Collateral Account that Borrower or any of its domestic U.S. Subsidiaries, at any time maintains in the United States or the United Kingdommaintains, Borrower or such Subsidiary shall cause the applicable bank or financial institution (other than Senior Lender) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserCollateral Agent’s Lien in such Collateral Account in accordance with the terms hereunder prior to the establishment of such Collateral Account, which Control Agreement may not be terminated without the prior written consent of Purchaser. The provisions Collateral Agent.
(c) Neither Borrower nor any of the previous sentence its Subsidiaries shall not apply to the Standard Accounts, the Commerzbank Accounts, deposit accounts exclusively used for payroll, payroll Taxes maintain any Collateral Accounts except Collateral Accounts maintained in accordance with Sections 6.6(a) and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser by Borrower as such(b).
Appears in 1 contract
Sources: Loan and Security Agreement (Aratana Therapeutics, Inc.)
Operating Accounts. (a) Maintain its and its Subsidiaries’, if any, domestic depository, operating accounts and securities accounts with Senior Lender and Senior Lender’s affiliates (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser Required Purchasers who have entered into Control Agreements in favor of PurchaserAgent) with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser Required Purchasers who have entered into Control Agreements in favor of PurchaserAgent), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser Required Purchasers who have entered into Control Agreements in favor of PurchaserAgent). Notwithstanding the foregoing, (A) EMEA shall be permitted to maintain its existing deposit accounts with (i) Standard Chartered Bank (the “Standard Accounts”), provided that the aggregate maximum balance of such Standard Accounts does not exceed Twenty Five Thousand Dollars ($25,000) at any time, and (ii) Commerzbank (the “Commerzbank Accounts”), provided that the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser Required Purchasers shall determine, in its their sole but reasonable discretion), all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be have been (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser Agent and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to PurchaserAgent, in its reasonable discretion;; and (C) no later than seventy-five (75) days after the Restatement Date (or such later date as Required Purchasers shall determine, in their sole but reasonable discretion), all accounts held by nLayer maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall have been (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Agent and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Agent, in its reasonable discretion.
(b) Provide Purchaser Purchasers five (5) days prior-written notice before establishing any Collateral Account at or with any bank or financial institution other than Senior Lender or Senior Lender’s Affiliates. For each Collateral Account that Borrower at any time maintains in the United States or the United Kingdom, Borrower shall cause the applicable bank or financial institution (other than Senior Lender) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserAgent’s and Purchasers’ Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of PurchaserAgent. The provisions of the previous sentence shall not apply to the Standard Accounts, the Commerzbank Accounts, deposit accounts exclusively used for payroll, payroll Taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser Purchasers by Borrower as such.
Appears in 1 contract
Sources: Note Purchase Agreement (Global Telecom & Technology, Inc.)
Operating Accounts. (a) Maintain its No later than thirty (30) days after the Effective Date and its at all times thereafter, Co-Borrowers shall maintain all their and all of their Subsidiaries’, if any, domestic depository, ’ depository and operating accounts and securities accounts excess cash with Senior Lender Bank and Senior LenderBank’s affiliates (and upon payment in full of the Senior DebtAffiliates; provided however, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser) with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiariesso long as Co-Borrowers’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding the foregoing, (A) EMEA shall be permitted to maintain its existing deposit accounts with (i) Standard Chartered Bank (the “Standard Accounts”), provided that the aggregate maximum a balance of such Standard Accounts does unrestricted cash with Bank not exceed Twenty less than Forty Five Thousand Dollars ($25,000) at any time, and (ii) Commerzbank (the “Commerzbank Accounts”), provided that the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time45,000,000), Co-Borrowers’ may maintain accounts outside of Bank and Bank’s Affiliates subject to a Control Agreement or subject to the UK Security Documents with aggregate balances not to exceed Twenty Five Million Dollars ($25,000,000); and (B) no later than seventy-provided further that within five (755) days after the Initial Closing Date (Business Days of Bank's written request following an Event of Default that is continuing or such later date as Purchaser a Cash Collateralization Event, Co-Borrowers shall determine, in its sole but reasonable discretion), maintain all their and all of their Subsidiaries’ depository and operating accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, excess cash with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior LenderBank and Bank’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;.
(b) In addition, on and after ninety (90) days following the Effective Date, each Co-Borrower and any Subsidiary of a Co-Borrower shall obtain any business credit cards exclusively from Bank, and shall utilize Bank for all its cash management needs, including Letters of Credit.
(c) Provide Purchaser Bank five (5) days prior-prior written notice before establishing any Collateral Account at or with any bank or financial institution other than Senior Lender Bank or Senior LenderBank’s Affiliates. For each Collateral Account that a Co-Borrower at any time maintains in the United States or the United KingdomStates, such Co-Borrower shall cause the applicable bank or financial institution (other than Senior LenderBank) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserBank’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of PurchaserBank. The provisions of the previous sentence shall not apply to the Standard Accounts, the Commerzbank Accounts, (i) deposit accounts exclusively used for payroll, payroll Taxes taxes, and other employee wage and benefit payments to or for the benefit of a Co-Borrower’s employees and identified to Purchaser Bank by such Co-Borrower as suchsuch or (ii) other accounts holding no more than One Hundred Thousand Dollars ($100,000) in the aggregate at all such accounts.
Appears in 1 contract
Operating Accounts. (a) Maintain its all of Borrower’s and its Subsidiaries’’ Collateral Accounts as disclosed in the Perfection Certificate delivered on the Effective Date in accounts which are, if anyin the case of Collateral Accounts of Borrower and any Guarantor, domestic depository, operating accounts and securities accounts with Senior Lender and Senior Lender’s affiliates (and upon payment in full of the Senior Debt, at financial institutions acceptable subject to Purchaser who have entered into a Control Agreements Agreement in favor of PurchaserCollateral Agent, except to the extent otherwise permitted under Section 6.6(c).
(b) with all excess domestic funds maintained Notwithstanding anything to the contrary in Section 6.6(a), Borrower and its Subsidiaries shall not maintain cash and Cash Equivalents, in the aggregate, totaling more than the following amounts in Borrower’s Collateral Accounts held at or invested through Senior Lender or an affiliate Bank of Senior Lender (and upon payment in full of the Senior DebtAmerica, at financial institutions acceptable N.A., which are subject to Purchaser who have entered into a Control Agreements Agreement in favor of PurchaserCollateral Agent: (i) Six Million Dollars ($6,000,000.00), which accounts shall represent at least one hundred percent (100%) of all times when the dollar aggregate value of Borrower’s cash and GuarantorCash Equivalents held in Borrower’s accounts Collateral Accounts at ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, which are subject to a Control Agreement in favor of Collateral Agent, is equal to or greater than Twenty-Five Million Dollars ($25,000,000.00) and (ii) Four Million Dollars ($4,000,000.00), at all financial institutions in times when the United States, and least sixty percent (60%) of the dollar aggregate value of Borrower’s cash and each Subsidiaries’ accounts Cash Equivalents held in Borrower’s Collateral Accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository▇▇▇▇▇▇▇ Lynch, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior DebtPierce, at financial institutions acceptable ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, which are subject to Purchaser who have entered into a Control Agreements Agreement in favor of Purchaser). Notwithstanding the foregoingCollateral Agent, (A) EMEA shall be permitted to maintain its existing deposit accounts with (i) Standard Chartered Bank (the “Standard Accounts”), provided that the aggregate maximum balance of such Standard Accounts does not exceed Twenty is less than Twenty-Five Thousand Dollars ($25,000) at any time, and (ii) Commerzbank (the “Commerzbank Accounts”), provided that the aggregate maximum balance of such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion25,000,000.00), all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior Lender’s Affiliates; or (ii) subject to an account control agreement in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;.
(bc) Provide Purchaser Borrower shall provide Collateral Agent five (5) days prior-days’ prior written notice before establishing Borrower or any of its Subsidiaries establishes any Collateral Account at or with any Person other than any bank or financial institution other than Senior Lender or Senior Lender’s Affiliatesthat is not disclosed in the Perfection Certificate delivered on the Effective Date, such Person to be acceptable to Collateral Agent in its reasonable discretion. For In addition, for each Collateral Account that Borrower or any Guarantor, at any time maintains in the United States or the United Kingdommaintains, Borrower or such Guarantor shall cause the applicable bank or financial institution (other than Senior Lender) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserCollateral Agent’s Lien in such Collateral Account in accordance with the terms hereunder prior to the establishment of such Collateral Account, which Control Agreement may not be terminated without the prior written consent of PurchaserCollateral Agent. The provisions of the previous sentence shall not apply to the Standard Accounts, the Commerzbank Accounts, (1) deposit accounts exclusively used for payroll, payroll Taxes taxes and other employee wage and benefit payments to or for the benefit of Borrower’s ’s, or any of its Subsidiaries’, employees and identified to Purchaser Collateral Agent by Borrower as suchsuch in the Perfection Certificates, (2) deposit accounts securing Indebtedness described in clause (g) of the definition of Permitted Indebtedness, (3) the deposit account of Borrower described in Section 5(c) of the Perfection Certificate and ending in xxx3771 so long as amounts held in such account do not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) and (4) the “master account” of Borrower held at ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated described in Section 5(c) of the Perfection Certificate and ending in xxx03527 so long as such account is at all times a “zero-balance” account (collectively, the “Excluded Accounts”).
(d) Neither Borrower nor any of its Subsidiaries shall maintain any Collateral Accounts except Collateral Accounts maintained in accordance with Sections 6.6(a), (b) and (c).
Appears in 1 contract
Operating Accounts. (a) Maintain its From and its Subsidiaries’after the date not later than sixty (60) days after the Effective Date, if any, domestic depository, operating accounts and securities accounts with Senior Lender and Senior Lender’s affiliates (and upon payment in full maintain all the Collateral Accounts of the Senior DebtLoan Parties with Bridge Bank, at financial institutions acceptable which shall have agreed to Purchaser who have entered into execute Control Agreements in favor of Purchaser) Collateral Agent with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debtrespect to such Collateral Accounts; provided, at financial institutions acceptable to Purchaser who have entered into however Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding the foregoing, (A) EMEA shall not be permitted to maintain its existing deposit accounts with required for any Deposit Accounts (i) Standard Chartered Bank exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of Borrower’s, or any Subsidiaries’, employees and identified to Collateral Agent by Borrower as such in the Disclosure Schedules, (the “Standard Accounts”), provided that the aggregate maximum balance of such Standard Accounts does not exceed Twenty Five ii) holding less than Fifty Thousand Dollars ($25,00050,000) at any timein the aggregate across all such accounts; (iii) holding cash collateral permitted pursuant to clause (j) of the definition of “Permitted Liens” or (iv) of Subsidiaries that are not Guarantors (collectively, and (ii) Commerzbank (the “Commerzbank Excluded Accounts”), ; provided that for a period of one hundred eighty (180) days following the aggregate maximum balance of Effective Date, Borrower and its Subsidiaries may maintain its existing accounts at Comerica Bank so long as (A) not later than ten (10) Business Day after the Effective Date such Commerzbank Accounts does not exceed One Million Dollars ($1,000,000) at any time; and accounts are subject to Control Agreements, (B) no later than seventy-five (75) days from and after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion)Effective Date, all accounts amounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates shall be (i) closed, with all proceeds in such accounts (in each case excluding any such amounts as are sufficient to satisfy outstanding checks issued to unaffiliated Persons in the ordinary course of business and other obligations owed to Comerica Bank with respect to such accounts) are transferred to a Collateral Account at Senior Lender or Bridge Bank from time to time, but not less frequently than once per week, and (C) during such one hundred eighty (180) day period, Borrower and its Subsidiaries maintain at all times no less than ninety-five percent (95%) of Senior LenderBorrower’s Affiliates; or (ii) subject to an account control agreement and its Subsidiaries’ global cash and cash equivalents in favor of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form and substance acceptable to Purchaser, in its reasonable discretion;Collateral Accounts at Bridge Bank.
(b) Provide Purchaser five Borrower shall provide Collateral Agent ten (510) days prior-days’ prior written notice before establishing any Loan Party establishes any Collateral Account at or with any bank or financial institution other than Senior Lender or Senior Lender’s AffiliatesAccount. For In addition, for each Collateral Account that Borrower any Loan Party, at any time maintains in the United States maintains, such Loan Party shall cause Bridge Bank or the United Kingdom, Borrower shall cause the applicable bank or financial institution (other than Senior Lender) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserCollateral Agent’s Lien in such Collateral Account (held for the ratable benefit of the Secured Parties) in accordance with the terms hereunder which Control Agreement may not be terminated without prior to the prior written consent establishment of Purchasersuch Collateral Account. The provisions of the previous sentence shall not apply to the Standard Deposit Accounts that are Excluded Accounts.
(c) No Loan Party shall maintain any Deposit Account, the Commerzbank AccountsSecurities Account, deposit accounts exclusively used or Commodity Account, or any other bank account except Collateral Accounts maintained in accordance with this Section 6.6.
(d) Borrower shall provide, and shall cause each of its Subsidiaries to to provide, Bridge Bank and/or Western Bank with an opportunity to compete for payroll, payroll Taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser any international banking services required by Borrower as suchand its Subsidiares, including, but not limited to, foreign currency wires, ▇▇▇▇▇▇, swaps, FX Contracts, and Letters of Credit.
Appears in 1 contract
Sources: Loan and Security Agreement (Restoration Robotics, Inc.)
Operating Accounts. (a) Maintain all of its and all of its Subsidiaries’, if any, domestic depository, ’ (excluding Securities Corporation) operating accounts and securities accounts excess cash with Senior Lender Bank and Senior LenderBank’s affiliates (and upon payment in full of the Senior DebtAffiliates, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser) with all excess domestic funds maintained at or invested through Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser), which accounts shall represent at least one hundred percent (100%) of the dollar value of Borrower’s and Guarantor’s accounts at all financial institutions in the United States, and least sixty percent (60%) of the dollar value of Borrower’s and each Subsidiaries’ accounts at all financial institutions worldwide. Any domestic Guarantor shall maintain all depository, operating and securities accounts with Senior Lender or an affiliate of Senior Lender (and upon payment in full of the Senior Debt, at financial institutions acceptable to Purchaser who have entered into Control Agreements in favor of Purchaser). Notwithstanding the foregoing, (A) EMEA provided that Borrower shall be permitted to maintain its existing deposit accounts account with (i) Standard Chartered Bank ▇▇▇▇▇▇▇▇▇▇▇ Holdings (the “Standard Accounts▇▇▇▇▇▇▇▇▇▇▇ Account”), provided that the aggregate maximum balance of such Standard Accounts does in the ▇▇▇▇▇▇▇▇▇▇▇ Account shall not exceed Twenty Five Thousand Dollars ($25,0005,000.00) at any time. In addition to the foregoing, Borrower shall at all times maintain unrestricted cash in accounts in the name of Borrower with Bank, in an amount equal to the lesser of (x) one hundred percent (100.0%) of the Borrower’s consolidated cash, including any Subsidiaries’ (excluding Securities Corporation’s) cash, in the aggregate and (iiy) Commerzbank one hundred ten percent (110.0%) of the then then-outstanding Obligations of Borrower to Bank (such amount under clause (y), the “Commerzbank AccountsMinimum Threshold”), provided that, if at any time the amount of unrestricted cash in accounts in the name of Borrower with Bank is less than the Minimum Threshold, Borrower shall completely liquidate Securities Corporation and transfer all proceeds of such liquidation into an account in the name of Borrower with Bank. Notwithstanding the foregoing, provided that no Event of Default has occurred and is continuing, at all times in which the aggregate maximum balance amount of such Commerzbank Accounts does not exceed One cash in accounts in the name of Borrower with Bank exceeds Twenty Million Dollars ($1,000,00020,000,000.00) at any time; and (B) no later than seventy-five (75) days after the Initial Closing Date (or such later date as Purchaser shall determine, in its sole but reasonable discretion“Required Amount”), all accounts held by any of PEIRL, PEUSA, PEINC, and PELTD maintained at financial institutions other that Senior Lender or Senior Lender’s Affiliates Borrower shall be permitted to maintain fifty percent (i50.0%) closedof its cash in excess of the Required Amount with other financial institutions. Bank may restrict withdrawals or transfers by or on behalf of Borrower that would violate this Section 6.6(a), regardless of whether an Event of Default exists at such time. Borrower shall also conduct all of its primary banking with all proceeds in such transferred to a Collateral Account at Senior Lender or one of Senior LenderBank and Bank’s Affiliates; or (ii) subject to an account control agreement in favor , including, without limitation, letters of Purchaser and/or Senior Lender in accordance with the Intercreditor Agreement, in form credit and substance acceptable to Purchaser, in its reasonable discretion;business credit cards.
(b) Provide Purchaser Bank five (5) days prior-prior written notice before establishing any Collateral Account at or with any bank or financial institution other than Senior Lender Bank or Senior LenderBank’s Affiliates. For each Collateral Account that Borrower at any time maintains in the United States or the United Kingdommaintains, Borrower shall cause the applicable bank or financial institution (other than Senior LenderBank) at or with which any such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect PurchaserBank’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of PurchaserBank. The provisions of the previous sentence shall not apply to the Standard Excluded Accounts, the Commerzbank Accounts, deposit accounts exclusively used for payroll, payroll Taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Purchaser by Borrower as such.
Appears in 1 contract
Sources: Loan and Security Agreement (Genocea Biosciences, Inc.)