Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Agent shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations: (i) The Collateral Agent shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Agent, the Collateral Manager shall provide to the Collateral Agent an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments. (ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein. (iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent. (iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured. (v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent. (vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy. (vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”). (viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral. (ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice. (x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent. (xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day. (xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time. (xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral. (xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent. (xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent. (xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person. (xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 5 contracts
Sources: Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.)
Duties. On or before the initial Funding Date, and until Until its removal pursuant to Section 7.513.4, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered to it by the Borrower pursuant to and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured PartiesParties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties and with respect to documents maintained in Electronic Form, such documents shall be delivered to the Electronic Vault in the name of the Collateral Custodian on behalf of the Borrower that is maintained with the E-Vault Provider, identified via the Required Legend, and under the control of the Administrative Agent where the Collateral Custodian shall perform the certification described below. Within five (5) Business Days of its receipt of any Required purported Loan Documents, the Loan Checklist and an updated Loan List (the “Review Period”), or, if more than fifty (50) Loan Documents are delivered on any particular Business Day, such greater time period that is mutually acceptable to the Borrower, the Administrative Agent and the related Loan ChecklistCollateral Custodian (which acceptance may be conclusively confirmed by e-mail), the Collateral Agent Custodian shall review the purported Required Loan Documents delivered to it to confirm that (A) the Obligor name matches if the Loan ChecklistChecklist indicates that any document must contain an original signature, each such document appears to bear the original signature, or if the Loan Checklist indicates that such document may contain a copy of a signature, that such document appears on its face to bear a reproduction of such signature and (B) based on a review of the applicable note (or the applicable Contract, in the case of an Equipment Finance Loan), the related initial Loan balance, Loan identification number and Obligor name with respect to such Loan is referenced on the related Loan Checklist and the Loan to which such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the relate is not a duplicate Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent an electronic copy Custodian the updated Loan List (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of Custodian) and the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within Within one (1) Business Day notify after the end of the Review Period, the Collateral Manager Custodian shall deliver to the Borrower, the Servicer, and the Borrower Administrative Agent a certificate substantially in the form of such determination and provide Exhibit I attached hereto (the “Custodial Certificate”), which shall indicate whether any Required Loan Documents listed on the Loan Checklist are not included in the Required Loan Documents so delivered to the Collateral Manager Custodian and include a report of exceptions to the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy(each, an “Exception Report”). The Collateral Manager Servicer shall have twenty (20) Business Days days to correct any non-compliance with any Review Criteria. If after the conclusion of ; provided, however that if such time period the Collateral Manager has still not cured any non-compliance by pertains to the receipt of original recorded documents from a filing office, such period shall be one hundred twenty (120) days. With respect to Required Loan Documents in Electronic Form maintained in the Electronic Vault in the name of the Collateral Custodian on behalf of the Borrower that is maintained with any Review Criteriathe E-Vault Provider, identified via the Required Legend, and under the control of the Administrative Agent, the Collateral Agent Required Loan Documents shall promptly notify be released pursuant to the Collateral Manager, direction of the Borrower and the Administrative Agent in one of the following methods: (i) via a vault to vault transfer within the E-Vault Provider’s Electronic System or (ii) such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E other electronic transfer as mutually agreed by the Collateral Manager and approved by Borrower, the Administrative Agent within ten (10) Business Days of and the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying InstrumentsCustodian.
(ii) In taking and retaining custody of the Underlying InstrumentsLoan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals or copies of Contracts (in the case of Equipment Finance Loans), promissory notes, stock powers, or allonges (other than documents delivered in Electronic Form) shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c)Custody Facilities. All Required Loan Documents that are originals or copies shall be placed together with an appropriate identifying label (other than documents in Electronic Form) and maintained in such a manner so as to permit identification, retrieval and access. The Collateral Agent Custodian shall segregate keep the Required Loan Documents on its inventory system and will not commingle (which with regards to documents in Electronic Form shall, subject to Section 5.1(pp), be maintained in the physical Required Loan Documents with any other files Electronic Vault in the name of the Collateral Custodian on behalf of the Borrower that is maintained with the E-Vault Provider, identified via the Required Legend, and under the control of the Administrative Agent) clearly segregated from any other documents or instruments in its files.
(iv) [Reserved].
(v) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer a written report (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) ), identifying each Loan for which it holds Required Loan Documents Documents, and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative AgentException Report.
(vi) The Collateral Agent shall, promptly upon its actual receipt Custodian was not engaged to perform any of a Collateral Management Report from the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Loan Documents provided to the Collateral Manager on behalf Custodian hereunder as contemplated by Rule 17g-10 under the Securities Exchange Act of 1934, as amended. Given the purpose and scope of the BorrowerCollateral Custodian’s services under this Agreement, calculate the Borrowing Base and, if parties hereto agree that the Collateral AgentCustodian’s calculation does services are not correspond with commonly understood in the calculation provided by market to be “due diligence services” for purposes of Rule 17g-10. The parties hereto do not consider the Collateral Manager on such Collateral Management Report, deliver such calculation Custodian’s services to each be “due diligence services” for purposes of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by Rule 17g-10. The parties hereto hereby acknowledges that the Collateral Agent Custodian is relying on this certification for purposes of such Collateral Management Report and the parties shall reconcile such discrepancydetermining that its services do not constitute “due diligence services” under Rule 17g-10.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but Custodian shall be under no responsibility or duty to, take or refrain from taking with respect to the disposition of any Loan Documents while such courses Loan Documents are not in its possession in accordance with the terms of actionthis Agreement. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent Custodian shall be entitled to rely on the advice retain copies of legal counsel and independent accountants obtained in good faith in performing any Loan Documents for so long as required by its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) internal document retention policy. The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent Custodian shall not be required responsible to take verify the authenticity of any signature (whether original or facsimile) on any of the documents received or examined by it or the authority or capacity of any Person to execute or issue any such incidental action hereunder, but document. The Collateral Custodian’s services hereunder shall be required to act conducted through the Document Custody division of ▇▇▇▇▇ Fargo (including, as applicable, any agents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agentaffiliates utilized thereby).
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 4 contracts
Sources: Credit Agreement (Trinity Capital Inc.), Credit Agreement (Trinity Capital Inc.), Credit Agreement (Trinity Capital Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.513.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (identified on the Loan Asset Checklist) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E M) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that provided, further, that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Agent set forth Custodian in Section 5.5(c)12.02, or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to Solar Senior Capital and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent and the Borrower.
(iv) On each Reporting Datethe 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VIII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 4 contracts
Sources: Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.), Loan and Servicing Agreement (Solar Senior Capital Ltd.), Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Duties. On or before From the initial Funding Date, and Closing Date until its resignation or removal pursuant to Section 7.514.9, the Collateral Agent Document Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, perform the following duties and obligations:
(i) The Collateral Agent Document Custodian shall take accept delivery and retain custody of the Required Loan Documents Related Contracts listed on the related Document Checklist delivered by the Borrower pursuant to and clause (b) above in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Agent, the Collateral Manager shall provide to the Collateral Agent an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals Related Contracts shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c)Document Custodian Office. All Required Loan Documents Related Contracts shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Document Custodian shall segregate the Required Loan Documents Related Contracts on its inventory system and will not commingle the physical Required Loan Documents Related Contracts with any other files of the Document Custodian other than those, if any, relating to the Borrower and its subsidiaries.
(ii) In taking and retaining custody of the Related Contracts, the Document Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that, the Document Custodian makes no representations as to the existence, perfection, enforceability or priority of any Lien on the Related Contracts or the instruments therein or as to the adequacy or sufficiency of such Related Contracts; provided further that the Document Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) On or promptly following the last calendar day of each month, the Document Custodian shall provide the Collateral Agent, the Administrative Agent, the Borrower and the Services Provider access to an electronic database maintained by the Document Custodian, which such database shall identify the Related Contracts delivered to the Document Custodian per the Document Checklist.
(iv) On each Reporting DateNotwithstanding any provision to the contrary elsewhere in the Loan Documents, the Collateral Agent Document Custodian shall provide a written report not have or be deemed to have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Loan Documents or otherwise exist against the Document Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Document Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility. The Document Custodian shall not be deemed to assume any obligations or liabilities of the Borrower, the Administrative Agent and the or Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each hereunder or under any other Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is curedDocument.
(v) The Collateral Agent After the occurrence and during the continuance of an Event of Default, the Document Custodian agrees to cooperate with the Administrative Collateral Agent (acting at the direction of the Majority Lenders) and promptly deliver any Required Loan Documents Related Contracts to the Administrative Collateral Agent as requested in order to take any action that the Administrative Agent deems Majority Lenders deem necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event for the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation. In the event the Document Custodian receives instructions from the Services Provider or the Borrower which conflict with any instructions received from the Collateral Agent (acting at the direction of the Majority Lenders) at any time other than following the occurrence and during the continuance of an Event of Default, the execution Document Custodian shall rely on and follow the instructions given by the Collateral Agent. After the occurrence and during the continuance of an Event of Default, the Document Custodian shall rely on and follow only the instructions given by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or and shall not follow any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve instructions given by the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the CollateralServices Provider.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(xvi) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify each acting at the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms direction of the Transaction Documents with respect to the Collateral and (BMajority Lenders) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent Document Custodian in writing to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Document Custodian hereunder, the Collateral Agent Document Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or Administrative Agent, as applicable; provided that the Document Custodian shall not be required to take any such action at the direction of its Affiliates from engaging the Administrative Agent, the Collateral Agent, any Secured Party or otherwise if the taking of such action, in other businesses or from rendering services the reasonable determination of the Document Custodian, (x) shall be in violation of any kind applicable law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Document Custodian to liability hereunder (unless it has been provided with an indemnity agreement (including the indemnity provisions contained herein and in the other Loan Documents) which it reasonably deems to be satisfactory with respect thereto). In the event the Document Custodian requests the consent of the Administrative Agent directs the or Collateral Agent Agent, as applicable, and the Collateral Document Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all or the Collateral Agent’s rights, protections and immunities provided herein as applicable, within 10 Business Days of its receipt of such request, then the Administrative Agent or the Collateral Agent, as applicable, shall apply be deemed to have declined to consent to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacityrelevant action.
Appears in 4 contracts
Sources: Credit Agreement (Blue Owl Capital Corp), Credit Agreement (Owl Rock Capital Corp), Credit Agreement (Owl Rock Capital Corp)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.511.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and Section 3.02 in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Tape and a hard copy of the Loan Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (to the extent required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan number and Obligor name, as applicable, with respect to such Loan is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Agent, the Collateral Manager shall provide to the Collateral Agent an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Tape, the Collateral Custodian shall notify the Administrative Agent and the Borrower and the Borrower Advisors of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Borrower and the Borrower Advisors of such determination and provide the Collateral Manager Borrower and the Borrower Advisors with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Borrower shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E M) by the Collateral Manager Borrower and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that provided, further, that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Agent Custodian set forth on Annex A to this Agreement, or at such other office as shall be specified to the Administrative Agent and the Borrower by the Collateral Custodian in Section 5.5(c)a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Borrower and its Affiliates and Subsidiaries; provided, however, the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent and the Borrower.
(iv) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Borrower and the Borrower Advisors (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(vi) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided Borrower Advisors or the Borrower which conflict with any instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless an Authorized Person of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 4 contracts
Sources: Loan and Servicing Agreement (FS Investment Corp II), Loan and Servicing Agreement (FS Energy & Power Fund), Loan and Servicing Agreement (FS Investment Corp II)
Duties. On or before the initial Funding Date, and until Until its removal pursuant to Section 7.513.9, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. With respect to each delivery of Required Loan Documents, the Borrower shall provide or cause to be provided a related Loan Checklist to the Custodian with respect to such Required Loan Documents that are being delivered.
(ii) Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it (as identified on the related Loan Checklist) to confirm that (A) the Obligor name matches the Obligor name identified on the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Custodian and (D) the related original balance Outstanding Balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to matches the applicable loan balance Outstanding Balance listed on the related Loan Tape Checklist (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian an electronic copy (in EXCEL or a comparable format acceptable to the Collateral AgentCustodian, as applicable, ) of the related Loan Checklist that contains a list of the Loans, all related Required Loan Documents and whether they require original signatures, the Loan identification number number, the Outstanding Balance of such Loan and the name of the Obligor with respect to each related LoanLoan identified on such schedule. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at At the conclusion of such review, the Custodian shall provide the Collateral Agent is unable to confirm the Review CriteriaManager, the Collateral Administrative Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide (with a copy to the Collateral Manager Agent) a report in the form attached hereto as Exhibit L identifying each Loan for which it holds Required Loan Documents and the Borrower with a list variances to the Review Criteria (the “Custodian Report”), which shall include (i) any discrepancies related to the Outstanding Balance of the non-complying Loans with respect to which it has received Required Loan Documents and the applicable Outstanding Balance provided in the electronic file of the Loan Checklist, and (ii) any Review Criteria that they fail to satisfyis not satisfied. The Collateral Manager shall have twenty (20) Business Days after delivery of a Custodian Report to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance noncompliance by a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, the Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E L by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsInstruments or Required Loan Documents.
(iiiii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured PartiesAdministrative Agent and the Lenders; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated hereinherein and no implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Custodian.
(iiiiv) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent Custodian set forth in Section 5.5(c), or at such other office as shall be specified to the Administrative Agent and the Collateral Manager by the Custodian in a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian.
(ivv) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after receiving written notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(vvi) The Collateral Agent agrees Custodian agrees, subject to Section 13.2(a)(vii), to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order for the Administrative Agent to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent Custodian receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other reasonable actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, ; provided that the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto).
(xviviii) Nothing herein The Custodian may conclusively rely on and shall prevent be fully protected in acting upon any certificate (including any Officer’s Certificate of the Collateral Manager or the Borrower), instrument, opinion, notice, letter, facsimile, electronic communication or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or any (to the extent applicable) the Collateral Manager or (b) the verbal instructions of its Affiliates from engaging in other businesses the Administrative Agent or from rendering services of any kind (to any Personthe extent applicable) the Collateral Manager.
(xviiix) Concurrently herewithThe Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Custodian, or the Administrative Agent directs Agent. The Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent and Custodian has knowledge of such matter or written notice thereof is received by the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacityCustodian.
Appears in 4 contracts
Sources: Loan and Security Agreement (Palmer Square Capital BDC Inc.), Loan and Security Agreement (Palmer Square Capital BDC Inc.), Loan and Security Agreement (Palmer Square Capital BDC Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loans” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistUnderlying Instruments, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document must contain a copy of a signature, that such copies appear to bear a reproduction of such signature and (B) based on a review of the applicable note, the related original Loan balance, Loan identification number and Obligor name with respect to such Required Loan Documents have been executed by each party thereto is referenced on the related Loan List and have no missing or mutilated pagesis not a duplicate Loan, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents Underlying Instruments hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Checklist Custodian) that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the original Loan balance with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (1) the original Loan balances of the Loans with respect to which it has received Underlying Instruments is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Custodian shall immediately notify the Administrative Agent and the Collateral Manager of such discrepancy, and (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, the Borrower and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Loan and each of the applicable Review Criteria that such Loan shall cease fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents Underlying Instruments for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that that, the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents Underlying Instruments that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the its offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents Underlying Instruments that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent All Underlying Instruments that are originals or copies shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentCustodian. All Underlying Instruments that are delivered to the Collateral Custodian in electronic format shall be saved onto disks and/or onto the Collateral Custodian’s secure computer system, and maintained in a manner so as to permit retrieval and access.
(iv) The Collateral Custodian shall make payments in accordance with Section 2.7 and Section 2.8 (the “Payment Duties”).
(v) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents Underlying Instruments, the non-complying Loans and any the applicable Review Criteria that each such any non-complying Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent Custodian shall, promptly upon its actual receipt of a Collateral Management Report Borrowing Base Certificate from the Collateral Manager on behalf of the Borrower, re-calculate the Borrowing Base and, if the Collateral AgentCustodian’s calculation does not correspond with the calculation provided by the Collateral Manager Borrower on such Collateral Management ReportBorrowing Base Certificate, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent Custodian of such Borrowing Base Certificate. The Collateral Management Report Custodian shall also make required calculations for its Payment Duties as of the Determination Date related to such Payment Date, and deliver such calculations to the Borrower and the parties Collateral Manager (and, following the delivery of a Notice of Exclusive Control, the Administrative Agent and the Collateral Manager) for the Collateral Manager’s (or Administrative Agent’s, as applicable) review no later than two (2) Business Days prior to such Payment Date. The approval of such calculations (which may be by email) by the Collateral Manager (or after delivery of a Notice of Exclusive Control, the Administrative Agent) shall reconcile constitute instructions by the Collateral Manager (or after delivery of a Notice of Exclusive Control, the Administrative Agent) to the Collateral Custodian to withdraw on the related Payment Date from the applicable Collection Account and pay or transfer amounts set forth in such discrepancyreport in the manner specified, and in accordance with the priorities established, in Section 2.7 or Section 2.8, as applicable.
(vii) The In performing its duties, (A) the Collateral Agent Custodian shall make payments in accordance comply with the standard of care and express terms of the Transaction Documents with respect to the collateral that it holds hereunder and (B) calculations made by the Collateral Custodian pursuant to this Section 2.7 and Section 2.8 and as otherwise expressly 7.2(b) shall be made using information provided under this Agreement (by the “Payment Duties”)Borrower or the Collateral Manager to the Collateral Custodian.
(viii) The Administrative Agent parties acknowledges that in accordance with the Customer Identification Program (CIP) requirements under the USA Patriot Act and each other Secured Party further authorizes its implementing regulations, the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable Custodian in order to perfecthelp fight the funding of terrorism and money laundering, protect is required to obtain, verify, and record information that identifies each person or more fully evidence legal entity that establishes a relationship or opens an account with the security interests granted by Collateral Custodian. The Borrower hereby agrees that it shall provide the Borrower hereunderCollateral Custodian with such information as it may reasonably request including, but not limited to, the Borrower’s name, physical address, tax identification number and other information that will help the Collateral Custodian identify and verify the Borrower’s identity (and in certain circumstances, the beneficial owners thereof) such as organizational documents, certificate of good standing, license to do business, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateralpertinent identifying information.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent Custodian shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent Custodian by the Borrower as may be reasonably required by the Collateral AgentCustodian.
(xix) The Collateral Agent Custodian shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xiixi) The Collateral Agent Custodian shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent Custodian or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiiixii) The Collateral Agent Custodian shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 4 contracts
Sources: Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.), Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.), Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Asset Documents delivered by the Borrower Seller pursuant to and Section 3.2 in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistAsset Documents, the Collateral Agent Custodian shall review the related Collateral and Required Loan Asset Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have Collateral has been properly executed by each party thereto and have has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) each item listed in an Insurance Policy exists with respect to any real or personal property constituting the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Related Property, and (D) confirming the related original balance (based on a comparison Outstanding Asset Balance, Asset number and Obligor name with respect to the note or assignment agreement, as applicable) such Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape related Asset List and is not a duplicate Asset (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Asset Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist Asset List or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan Asset identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.Review
Appears in 4 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. On or before 1.1 Subject to the initial Funding Date, terms and until its removal pursuant to Section 7.5conditions set forth in the Agreement, the Collateral Agent shall perform, on behalf Trust hereby delegates to DSI the following functions with respect to the implementation of new customer accounts and the operation of existing customer accounts as required by the Trust's AML Program and Section 103.131(b) of Section 326 of the Administrative Agent and USA Patriot Act (the Secured Parties"CIP Regulations"), effective October 1, 2003: - Obtaining the following duties and obligations:
identifying information from each customer, as applicable: (i) The Collateral Agent shall take name, (ii) address, and retain custody (iii) tax payer identification number; - Verifying the identification of each institutional account holder, through documents or through non-documentary methods, in accordance with the CIP Regulations, so as to permit a reasonable belief that the true identity of the Required Loan Documents delivered customer is known, provided however, that when it is determined that a prospective institutional account holder is a subsidiary of ING Groep, N.V., the verification of such entity's identity will not need to be separately verified other than the collection of its name, address and tax identification number; - Determining, within the time required by law, whether the institutional account holder appears on any list of known or suspected terrorists or terrorist agencies issued by a Federal government agency and designated as such by the Borrower pursuant Department of Treasury; - In consultation with the Trust's Money Laundering Reporting Officer ("MLRO") as applicable, determining, in a case in which identity cannot be verified, what action should be taken with respect to the institutional account holder and whether a suspicious activity report should be filed; and - Creating and retaining records documenting the performance of these functions as required by the Trust's AML Program.
1.2 DSI agrees to perform such delegated duties subject to and in accordance with the terms and conditions of this the Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days DSI has provided a copy of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided anti-money laundering program to the Collateral Agent without any missing pages or sections Trust and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Agent, the Collateral Manager shall will provide to the Collateral Agent an electronic copy in EXCEL or a comparable format acceptable Trust any material modifications to the Collateral Agent, as applicable, of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the nonits anti-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If money laundering program promptly after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunderadoption. With respect to other actions which are incidental any internal audits of DSI's anti-money laundering program, DSI agrees to provide a prompt report regarding any exceptions to its program in connection with the Trust and its institutional accounts to the actions specifically delegated to Trust's designated MLRO provided such disclosure is permitted by the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction information sharing provisions of the Administrative AgentUSA Patriot Act.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 4 contracts
Sources: Distribution Agreement (Ing Investors Trust), Distribution Agreement (Ing Investors Trust), Distribution Agreement (Ing Investors Trust)
Duties. On or before From the initial Funding Closing Date until Restatement Date, and the Collateral Custodian was in compliance with its custodial obligations under the Original Agreement in all material respects. From the Restatement Date until its removal pursuant to Section 7.512.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been properly executed by each party thereto and have no missing or mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Collateral Agent without any missing pages or sections Underlying Collateral, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E N) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that provided, further, that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Agent set forth Custodian in Section 5.5(c)11.02, or at such other office as shall be specified to the Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any commingled files upon written request of the Agent and the Borrower.
(iv) On each Reporting Datethe 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Trustee and deliver any Required Loan Documents to the Administrative Trustee or Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager Trustee or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitationincluding any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Trustee, the execution Servicer or the Borrower which conflict with any instructions received by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this AgreementAgent, the Collateral Agent is required to decide between alternative courses of action, Custodian shall rely on and follow the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired given by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xiii) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, the Administrative Agent directs shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent is authorized within 10 Business Days of its receipt of such request, then the Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 4 contracts
Sources: Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)
Duties. On or before the initial Funding Closing Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower Sellers pursuant to and Section 3.2 hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistDocuments, the Collateral Agent Custodian shall review the related Collateral and Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have Collateral has been properly executed by each party thereto and have has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Loan Checklists) have been made, (C) each item listed in an Insurance Policy exists with respect to any real or personal property constituting the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Related Property, and (D) confirming the related original balance (based on a comparison Outstanding Loan Balance, Loan number and Obligor name with respect to the note or assignment agreement, as applicable) such Loan is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape List and is not a duplicate Loan (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist List or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the Outstanding Loan Balances of the Collateral it has received Required Loan Documents with respect to is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days to correct any non-compliance with any a Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by a Loan with any a Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, Borrower applicable Seller and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Loan and each of the applicable Review Criteria that such Loan shall cease fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrowerapplicable Seller. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided provided, however that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further provided, further, that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals Document shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Agent set forth Custodian in Section 5.5(c)a written notice delivered at least forty-five (45) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the All Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with shall be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentCustodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Report in accordance with Section 2.10 (the “Payment Duties”).
(v) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents Documents, the non-complying Loans and any the applicable Review Criteria that each such any non-complying Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent Custodian shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the similar Collateral and (B) all calculations made by the that it holds as Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral AgentCustodian.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 3 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. On or before From the initial Funding Date, and Effective Date until its removal pursuant to Section 7.513.5, the Collateral Agent Document Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Document Custodian shall take and retain custody of the Required Loan Documents delivered (physically or electronically) by the Borrower pursuant to and the definition of “Eligible Loan” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistChecklist (the “Review Period”), the Collateral Agent Document Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear an original or a reproduction of such signature and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable loan note, the related initial Loan balance listed when entered into or obtained by the Borrower, Loan identification number and Obligor name with respect to such Loan is referenced on the related Loan Tape Checklist and is not a duplicate Loan (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentDocument Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentDocument Custodian, the Collateral Manager shall provide to the Collateral Agent Document Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral AgentDocument Custodian) listing Loan identification number, as applicablename of Obligor, of and initial Loan balance and the related Loan Checklist per file that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance when entered into or obtained by the Borrower with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Document Custodian shall determine that any Review CriteriaCriteria are not satisfied, the Collateral Agent Document Custodian shall within one (1) Business Day notify the Borrower, the Administrative Agent and the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty ten (2010) Business Days to correct any non-compliance with any Review CriteriaCriteria as stated in the preceding sentence. If after After the conclusion of such time period Review Period, the Document Custodian shall execute and deliver to the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be a certification substantially in the form attached hereto as Exhibit J, including an Eligible Loan until such non-compliance is curedattached exception report. In addition, if requested in writing substantially in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentDocument Custodian’s delivery of such report, the Collateral Agent Document Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Document Custodian shall not have any responsibility for reviewing any Underlying Instruments. Notwithstanding anything herein to the contrary, the Document Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Document Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Document Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral AgentDocument Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents (to the extent physically received by the Document Custodian) that are (i) originals or physical copies shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Document Custodian located at the Custody Facilities, or at such other office as shall be specified to the Administrative Agent, the Borrower, and the Collateral Agent set forth Manager by the Document Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change and (ii) in electronic form (it being agreed that Required Loan Documents shall only be permitted to be delivered in electronic form with respect to Noteless Loans) shall be held electronically in such electronic format in which such Required Loan Documents were received. All Required Loan Documents that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Document Custodian shall segregate the physical Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentDocument Custodian.
(iv) All Required Loan Documents with respect to Permitted Investments that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the Custody Facilities (or such other location identified to the Administrative Agent and Borrower). All such Required Loan Documents that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All such Required Loan Documents that are originals or copies shall be clearly segregated from any other documents or instruments maintained by the Document Custodian. All such Required Loan Documents that are delivered to the Document Custodian in electronic format shall be saved onto disks and/or onto the Document Custodian’s secure computer system, and maintained in a manner so as to permit retrieval and access.
(v) On each Reporting Date, the Collateral Agent Document Custodian shall provide a written report to the Administrative Agent Agent, the Borrower, and the Collateral Manager (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents Documents, the non-complying Loans and any the applicable Review Criteria that each such any non-complying Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shallNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does Document Custodian shall not correspond have any fiduciary relationship with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other any party hereto or any Secured Party further authorizes the Collateral Agent to take such action in its capacity as agent on its behalf such, and to exercise such powers under no implied covenants, functions, obligations or responsibilities shall be read into this Agreement and Agreement, the other Transaction Documents as are expressly delegated to or otherwise exist against the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoDocument Custodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action other parties hereto that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them Document Custodian shall not be required to exercise any discretion hereunder and shall have no investment or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabovemanagement responsibility. Nothing in this clause The Document Custodian shall not be deemed to relieve assume any obligations or liabilities of the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateralhereunder or under any other Transaction Document.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xvvii) The Administrative Agent may direct the Collateral Agent Document Custodian to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Document Custodian hereunder, the Collateral Agent Document Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that, the Document Custodian shall not be required to take any action hereunder at the request of the Administrative Agent or otherwise if the taking of such action, in the reasonable determination of the Document Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Document Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Document Custodian requests the consent of the Administrative Agent and the Document Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(xviviii) Nothing herein The Document Custodian shall prevent not be liable for any action taken, suffered or omitted by it in accordance with the Collateral Agent request or any of its Affiliates from engaging in other businesses or from rendering services direction of any kind to any Person.
(xvii) Concurrently herewithSecured Party, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted extent that this Agreement provides such Secured Party the right to be taken under so direct the Sale Agreement and the Securities Account Control Agreement in such capacityDocument Custodian.
Appears in 3 contracts
Sources: Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.), Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.), Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Asset Documents delivered by the Borrower Seller pursuant to and Section 3.2 in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistAsset Documents, the Collateral Agent Custodian shall review the related Collateral and Required Loan Asset Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have Collateral has been properly executed by each party thereto and have has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) each item listed in an Insurance Policy exists with respect to any real or personal property constituting the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Related Property, and (D) confirming the related original balance (based on a comparison Outstanding Asset Balance, Asset number and Obligor name with respect to the note or assignment agreement, as applicable) such Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape related Asset List and is not a duplicate Asset (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Asset Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist Asset List or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan Asset identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days to correct any non-compliance with any a Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by an Asset with a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, Borrower Seller and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Loan shall cease Asset fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the BorrowerSeller. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Asset Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Asset Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Asset Documents or the instruments therein; and provided further that that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Agent set forth Custodian in Section 5.5(c)a written notice delivered at least 45 days prior to such change. All Required Loan Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent All Required Asset Documents shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentCustodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the parties hereto acknowledging that the Turbo Period has commenced on the Turbo Effective Date) (the “Payment Duties”).
(v) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan Asset for which it holds Required Loan Documents Asset Documents, the non-complying Assets and any the applicable Review Criteria that each such Loan any non-complying Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent Custodian shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the similar Collateral and (B) all calculations made by the that it holds as Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral AgentCustodian.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 3 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. On or before From the initial Funding Closing Date until Restatement Date, and the Collateral Custodian was in compliance with its custodial obligations under the Original Agreement in all material respects. From the Restatement Date until its removal pursuant to Section 7.512.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been properly executed by each party thereto and have no missing or mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made as listed on the Loan Asset Checklist, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Collateral Agent without any missing pages or sections Underlying Collateral, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E N) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further provided, further, that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Agent set forth Custodian in Section 5.5(c)11.02, or at such other office as shall be specified to the Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days (or such shorter notice period as consented to by the Agent) prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided, however, that the Collateral Custodian shall segregate any commingled files upon written request of the Agent and the Borrower.
(iv) On each Reporting Datethe 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent (who will provide each Lender with a copy promptly upon receipt thereof) and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Trustee and deliver any Required Loan Documents to the Administrative Trustee or Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager Trustee or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitationincluding any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Trustee, the execution Servicer or the Borrower which conflict with any instructions received by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this AgreementAgent, the Collateral Agent is required to decide between alternative courses of action, Custodian shall rely on and follow the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired given by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xiii) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, the Administrative Agent directs shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent is authorized within 10 Business Days of its receipt of such request, then the Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 2 contracts
Sources: Omnibus Amendment (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.511.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and Section 3.02(a) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Tape and a hard copy of the Loan Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan number and Obligor name, as applicable, with respect to such Loan is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Checklist that which contains a list of all related the Loan information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related such Loan. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (I) the original balance of the Loan with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Tape, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E J) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided provided, further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Agent Custodian set forth on Annex A to this Agreement, or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver Notwithstanding any Required Loan Documents provision to the Administrative Agent as requested contrary elsewhere in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative AgentTransaction Documents, the Collateral Agent Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond have any fiduciary relationship with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other any party hereto or any Secured Party further authorizes the Collateral Agent to take such action in its capacity as agent on its behalf such, and to exercise such powers under no implied covenants, functions, obligations or responsibilities shall be read into this Agreement and Agreement, the other Transaction Documents as are expressly delegated to or otherwise exist against the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoCustodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the other parties hereto that the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them Custodian shall not be required to exercise any discretion hereunder and shall have no investment or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateralmanagement responsibility.
(ixvi) If, in performing its duties under this Agreement, the Collateral Agent Custodian is required to decide between alternative courses of action, the Collateral Agent Custodian may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent Custodian does not receive such instructions within two (2) Business Days after its request thereforit has requested them, the Collateral Agent Custodian may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent Custodian shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already takenalready, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Agent Custodian shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(xvii) Nothing herein shall prevent the Collateral Custodian or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent shall create a collateral database with respect to and the Collateral (the “Collateral Database”), Agent and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests Granted by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation hereunder, or to the Accounts enable any of Collectionsthem to exercise or enforce any of their respective rights hereunder, the outstanding balances therein, and including any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information rights arising with respect to Article VII. In the event the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights, protections and immunities provided herein . The Collateral Custodian shall apply not be deemed to have notice or knowledge of any matter hereunder unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has actual knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (FS Investment Corp II)
Duties. On or before the initial Funding Cut-Off Date, and until its removal pursuant to Section 7.5, the Collateral Agent shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loans” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents Underlying Instruments and the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document must contain a copy of a signature, that such copies appear to bear a reproduction of such signature, (B) such Required filed stamped copies of the UCC and other filings (identified on the Loan Documents have been executed by each party thereto Checklist) are included and have no missing or mutilated pages, (C) each item listed in based on a review of the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) applicable note, the related original balance (based on a comparison Loan balance, Loan identification number and Obligor name with respect to the note or assignment agreement, as applicable) such Loan is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Checklist and is not a duplicate Loan (such items (A) through (DC) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents Underlying Instruments hereunder to the Collateral Agent, the Collateral Manager shall provide to the Collateral Agent an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of ) or the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the original Loan balance with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent shall determine that (1) the original Loan balances of the Loans with respect to which it has received Underlying Instruments is unable to confirm less than as set forth on the electronic file, the Collateral Agent shall immediately notify the Administrative Agent, the Borrower and the Collateral Manager of such discrepancy, and (2) any Review CriteriaCriteria is not satisfied, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty ten (2010) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Loan and each of the applicable Review Criteria that such Loan shall cease fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents Underlying Instruments for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents Underlying Instruments that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent Agent’s office set forth in Section 5.5(c)) hereof. All Required Loan Documents Underlying Instruments that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Underlying Instruments that are originals or copies shall be clearly segregated from any other documents or instruments maintained by the Collateral Agent. All Underlying Instruments that are delivered to the Collateral Agent in electronic format shall be saved onto disks and/or onto the Collateral Agent’s secure computer system, and maintained in a manner so as to permit retrieval and access.
(iv) The Collateral Agent shall segregate make payments in accordance with Section 2.7 and Section 2.8(a) and as otherwise expressly provided under this Agreement (the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent“Payment Duties”).
(ivv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent Agent, the Borrower and the Collateral Manager (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents Underlying Instruments, the non-complying Loans and any the applicable Review Criteria that each such any non-complying Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report Borrowing Base Certificate from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management ReportBorrowing Base Certificate, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day day of receipt by the Collateral Agent of such Borrowing Base Certificate. The Collateral Management Report Agent shall also make required calculations for each Payment Date Statement as of the day that is four (4) Business Days prior to the applicable Payment Date, and deliver such calculations to the Borrower and the parties Collateral Manager (and, following the delivery of a Notice of Exclusive Control, the Administrative Agent and the Collateral Manager) for the Collateral Manager’s (or Administrative Agent’s, as applicable) review no later than two (2) Business Days prior to such Payment Date. Upon the approval (which may be by email) by the Collateral Manager (or after delivery of a Notice of Exclusive Control, the Administrative Agent), the Payment Date Statement shall reconcile constitute instructions by the Collateral Manager (or after delivery of a Notice of Exclusive Control, the Administrative Agent) to the Collateral Agent to withdraw on the related Payment Date from the applicable Collection Account and pay or transfer amounts set forth in such discrepancyreport in the manner specified, and in accordance with the priorities established, in Section 2.7 or Section 2.8(a), as applicable.
(vii) The Collateral Agent shall make payments in accordance create a collateral database with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement respect to the Collateral (the “Payment DutiesCollateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent shall track the receipt and daily allocation to take such action as agent the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated each Business Day, provide to the Collateral Agent by the terms hereof and thereof, together with Manager daily reports reflecting such powers actions as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints close of business on the preceding Business Day.
(ix) The Collateral Agent shall provide such other information with respect to the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution may be routinely maintained by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary required by this Agreement, in each case as the Borrower, Collateral Manager or appropriate for the purposes stated hereinabove. Nothing in this clause Administrative Agent may reasonably request from time to time.
(x) The Collateral Agent shall be deemed to relieve notify the Borrower or Borrower, the Collateral Manager of their respective obligations and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of corporate actions affecting the Collateral.
(ixxi) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agentdesired. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard use a similar degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the similar collateral that it holds as Collateral Agent for others and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including Advance Rate, EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Controlling Lender, Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvixiii) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Loan and Security Agreement (Oaktree Specialty Lending Corp), Loan and Security Agreement (Fifth Street Senior Floating Rate Corp.)
Duties. On or before the initial Funding Effective Date, and until its removal pursuant to Section 7.514.05, the Collateral Agent Document Custodian shall perform, on behalf of the Administrative Agent and the other Secured Parties, the following duties and obligations:
(i) The Collateral Agent Document Custodian shall take and retain custody of the Required Loan Related Documents delivered to it by the Borrower or the Collateral Manager (on behalf of the Borrower) pursuant to and Section 7.05 in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan the Related Documents and Loan Checklist (the related Loan Checklist“Review Period”), the Collateral Agent Document Custodian shall review the Required Loan Related Documents delivered to it to confirm that (A) the Obligor name matches if the Loan ChecklistChecklist or electronic files delivered per the following sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the Loan Checklist or electronic file indicates that such document may contain a copy of a signature, that such copies appear to bear a reproduction of such signature and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable note, the related initial principal loan balance listed when entered into or obtained by the Borrower, loan identification number and Obligor name with respect to such Collateral Loan is referenced on the related Loan Tape Checklist or electronic file and does not appear to be a duplicate Collateral Loan (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentDocument Custodian, in connection with each delivery of Required Related Documents for a Collateral Loan Documents hereunder to the Collateral AgentDocument Custodian, the Collateral Manager shall provide to the Collateral Agent Document Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of Document Custodian) or the related Loan Checklist that contains a list of all related Required Related Documents for such Loan Documents and whether they require original signatures, the Loan loan identification number and the name of the Obligor and the initial principal loan balance when entered into or obtained by the Borrower with respect to each related Collateral Loan. Notwithstanding anything herein to the contrary, the Collateral AgentDocument Custodian’s obligation to review the Required Loan Related Documents shall be limited to reviewing such Required Loan Related Documents based on the information provided on the Loan ChecklistChecklist or electronic file as the case may be. IfIn receiving any Related Documents hereunder, at and in maintaining any listing or providing any report or communication with respect to the conclusion Related Documents held hereunder, the Document Custodian shall be required only to review such Related Documents in accordance with the Review Criteria. Within one Business Day after the end of such reviewthe Review Period, the Document Custodian shall notify the Borrower, the Collateral Manager, the Administrative Agent is unable to confirm the Review Criteria, and the Collateral Agent shall within one in writing of any Related Documents listed on the Loan Checklist not included in the Related Documents so delivered to the Document Custodian and any other exceptions to the Review Criteria substantially in the form of Exhibit L attached hereto (1) Business Day notify the Collateral Manager and “Custodial Certificate”). After the Borrower of such determination and provide the Collateral Manager and the Borrower with a list Document Custodian’s delivery of the non-complying Loans and Custodial Certificate, the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) ten Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E E-1 by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentDocument Custodian’s delivery of such reportCustodial Certificate, the Collateral Agent Document Custodian shall return the Required Loan Related Documents for any Collateral Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Document Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRelated Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRelated Documents, the Collateral Agent Document Custodian shall be deemed to be acting as the agent custodian of the Secured Parties, and has no instructions to hold any Related Documents for the benefit of any Person other than the Secured Parties; provided that the Collateral Agent Document Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Related Documents or the instruments therein; and provided further that the Collateral AgentDocument Custodian’s duties as agent custodian shall be limited to those expressly contemplated herein. In so taking and retaining custody of the Related Documents, the Document Custodian shall be deemed to be acting for the purpose of perfecting the Collateral Agent’s security interest therein under the UCC.
(iii) All Required Loan Documents that are originals The Document Custodian shall maintain continuous custody of all items in its possession in secure facilities in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Each Related Document which comes into the possession of the Document Custodian (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the offices office of the Collateral Agent set forth Document Custodian specified in Section 5.5(c). All Required Loan Documents Schedule 5 or at such other offices as shall be placed together specified to the Administrative Agent, the Borrower and the Collateral Manager in a written notice at least thirty (30) days prior to such change. Each Related Document shall be marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Document Custodian and the Administrative Agent. The Collateral Agent Document Custodian shall segregate keep the Required Loan Related Documents on its inventory system and will not commingle the physical Required Loan Documents with clearly segregated from any other files of the Collateral Agentdocuments or instruments in its files.
(iv) On each Reporting Payment Date, the Collateral Agent Document Custodian shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Collateral Loan for which it holds Required Loan Documents Related Documents, the non-complying Collateral Loans and any the applicable Review Criteria that each such any non-complying Collateral Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agentperforming its duties, the Collateral Agent Document Custodian shall rely on use a similar degree of care and follow the instructions given by the Administrative Agentattention as it employs with respect to similar collateral that it holds as Document Custodian for others.
(vi) The Collateral Agent shallIn no event shall the Document Custodian be liable for special, promptly upon its actual receipt indirect or consequential losses or damages of a Collateral Management Report from any kind whatsoever (including but not limited to lost profits) even if the Collateral Manager on behalf Document Custodian has been advised of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on likelihood of such Collateral Management Report, deliver such calculation to each damages and regardless of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent form of such Collateral Management Report and the parties shall reconcile such discrepancyaction.
(vii) The Notwithstanding anything herein to the contrary, delivery of the Collateral Agent shall make payments Loans acquired by the Borrower which constitute Noteless Loans or Participations or which are otherwise not evidenced by a “security” or “instrument” as defined in accordance with Section 2.7 8-102 and Section 2.8 9-102(a)(47) of the UCC, respectively, shall be made by delivery to the Document Custodian (as part of the Related Documents) of (i) in the case of a Noteless Loan, a copy of the loan register with respect to such Noteless Loan evidencing registration of such Collateral Loan on the books and records of the applicable Obligor or bank agent to the name of the Borrower (or its nominee) or a copy (which may be a facsimile copy) of an assignment agreement in favor of the Borrower as otherwise expressly provided under this Agreement assignee, and (ii) in the case of a Participation, a copy of the related participation agreement. Any duty on the part of the Document Custodian with respect to the custody of such Collateral Loans shall be limited to the exercise of reasonable care by the Document Custodian in the physical custody of any such Related Documents delivered to it, including any related instrument, security, credit agreement, assignment agreement and/or other agreements or documents, if any (collectively, “Payment DutiesFinancing Documents”), that may be delivered to it as part of the Related Documents.
(viii) The Administrative Agent Document Custodian may assume the genuineness of any such Financing Document it may receive and the genuineness and due authority of any signatures appearing thereon, and shall be entitled to assume that each other Secured Party further authorizes such Financing Document it may receive is what it purports to be. If an original “security” or “instrument” as defined in Section 8-102 and Section 9-102(a)(47) of the UCC, respectively, is or shall be or become available with respect to any Collateral Agent Loan to take such action as agent on its behalf and to exercise such powers be held by the Document Custodian under this Agreement Agreement, it shall be the sole responsibility of the Borrower to make or cause delivery thereof to the Document Custodian, and the other Transaction Documents as are expressly delegated Document Custodian shall not be under any obligation at any time to the Collateral Agent by the terms hereof and thereof, together with determine whether any such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent original security or instrument has been or is required to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary be issued or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements made available in respect of any Collateral Loan or to compel or cause delivery thereof to the CollateralDocument Custodian.
(ix) If, in performing its duties under this AgreementWith respect to the documents comprising each Related Document, the Collateral Agent is required to decide between alternative courses Document Custodian shall (i) act exclusively as Document Custodian for the Secured Parties, (ii) hold all documents constituting such Related Document received by it for the exclusive use and benefit of action, the Collateral Agent may request Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions from the Administrative Agent as to the course of action desired furnished by the Administrative Agent. If ; provided, that in the Collateral Agent does not receive such event of a conflict between the terms of this Agreement and the written instructions within two (2) Business Days after its request thereforof the Administrative Agent, the Collateral Agent may, but Administrative Agent’s written instructions shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advicecontrol.
(x) The Document Custodian shall accept only written instructions of a Responsible Officer of the Borrower, Collateral Agent, Collateral Manager or Administrative Agent shall create a collateral database with respect to concerning the Collateral (the “Collateral Database”)use, handling and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral AgentRelated Documents.
(xi) The In the event that (i) the Borrower, the Administrative Agent, the Administrative Agent, any Agent, the Collateral Manager, the Document Custodian or the Collateral Agent shall track be served by a third party with any type of levy, attachment, writ or court order with respect to any Related Document or a document included within a Related Document or (ii) a third party shall institute any court proceeding by which any Related Document or a document included within a Related Document shall be required to be delivered otherwise than in accordance with the receipt and daily allocation provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the Accounts other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of Collectionsall court papers, orders, documents and other materials concerning such proceedings. The Document Custodian shall, to the extent permitted by Applicable Law, continue to hold and maintain all the Related Documents that are the subject of such proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the outstanding balances thereinDocument Custodian shall dispose of such Related Document or a document included within such Related Document as directed by the Administrative Agent, which shall give a direction consistent with such determination. The reasonable and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as documented out-of-pocket expenses of the close Document Custodian incurred as a result of business on such proceedings shall be borne by the preceding Business DayBorrower and paid in accordance with Section 16.04.
(xii) The Collateral Agent Document Custodian shall provide such other information not be liable for any action taken, suffered or omitted by it in accordance with respect the request or direction of any Secured Party, to the Collateral as may be routinely maintained by extent that this Agreement provides such Secured Party the Collateral Agent or as may be required by this Agreementright to so direct the Document Custodian, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) Agent. The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent Document Custodian shall not be required deemed to take have notice or knowledge of any such incidental action matter hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction including a Collateral Manager Termination Event, unless a Responsible Officer of the Administrative AgentDocument Custodian has knowledge of such matter or written notice thereof is received by the Document Custodian.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i1) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower Seller pursuant to and Section 3.2 hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistDocuments, the Collateral Agent Custodian shall review the related Asset and Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have Asset has been properly executed by each party thereto and have has no missing or mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made, (C) each item listed in an Insurance Policy exists with respect to any real or personal property constituting the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Related Property, and (D) confirming the related original balance (based on a comparison Outstanding Loan Balance, Loan number and Obligor name with respect to the note or assignment agreement, as applicable) such Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape List and is not a duplicate Asset (such items (A) through (D) collectively, the “"Review Criteria”"). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist List or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the Outstanding Loan Balances of the Assets it has received Required Loan Documents with respect to is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days to correct any non-compliance with any a Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by an Asset with a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, Borrower Seller and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Loan shall cease Asset fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s Custodian's delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the BorrowerSeller. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents.
(ii2) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided provided, however, that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that provided, further, that, the Collateral Agent’s Custodian's duties as agent shall be limited to those expressly contemplated herein.
(iii3) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Agent set forth Custodian in Section 5.5(c)a written notice delivered at least forty-five (45) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the All Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with shall be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentCustodian.
(iv4) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Report in accordance with Section 2.7 and Section 2.8 (the "Payment Duties").
(5) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan Asset for which it holds Required Loan Documents Documents, the non-complying Assets and any the applicable Review Criteria that each such Loan any non-complying Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv6) In performing its duties, (A) the Collateral Agent Custodian shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the similar Assets that it holds as Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral AgentCustodian.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Loan Certificate and Servicing Agreement (Capitalsource Inc), Loan Certificate and Servicing Agreement (Capitalsource Inc)
Duties. On or before From the initial Funding DateClosing Date until its resignation pursuant to Section 12.07, and until its removal pursuant to Section 7.512.05, or the payment in full of all Obligations and the termination of all Commitments hereunder, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the items in clause (a) of the definition of Required Loan Documents in original form and the Collateral Custodian shall take an retain custody of electronic copies of the items in the definition of Required Loan Documents, (including any copies of original items described in clause (a) of such definition) and the Loan Asset Checklist, in each case delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such items), the related Loan Tape and an electronic copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the items in the definition of Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklistthat, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pageson their face, (C) each item listed in the Loan Asset Checklist required to be delivered to the Collateral Custodian pursuant to this Agreement has been provided to the Collateral Agent without any missing pages or sections and Custodian (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of applicable Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, Custodian) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the applicable Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset Checklist and the Collateral Custodian shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to be on its face. If, at the conclusion of such review, the Collateral Agent is unable to confirm Custodian shall determine that the Review CriteriaCriteria is not satisfied, the Collateral Agent Custodian shall within one (1) three Business Day Days notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer (which may be via email) with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan Asset shall cease be deemed to be an Eligible a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such non-compliance deficiency is cured. In addition, if requested in writing (in the form of Exhibit L) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s notification to the Servicer of its review of the Review Criteria, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian and Collateral Administrator shall not have any responsibility for reviewing any Required Loan Documents.
(ii) In taking and retaining custody of the Required Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting as the agent of the Secured Parties; provided that neither the Collateral Custodian nor the Collateral Administrator makes any representations as to, and shall be responsible for, the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that, the Collateral Custodian’s and the Collateral Administrator’s respective duties shall be limited to those expressly contemplated herein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral Custodian or the Collateral Administrator, as applicable.
(iii) All original promissory notes actually delivered to the Collateral Custodian shall be kept at the location of the Collateral Custodian specified in Section 11.02 or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days prior to such change. All such documents delivered to the Collateral Custodian must be sent by trackable courier service (e.g., UPS or Federal Express) All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) (x) On the Reporting Date of each month and (y) upon demand of the Administrative Agent (provided that prior to the occurrence of an Event of Default (that has not been waived), the Administrative Agent shall not make such demand more than four times per calendar year), the Collateral Custodian and the Collateral Administrator shall identify each Loan Asset for which it holds any Required Loan Documents and the Collateral Administrator shall identify any applicable Review Criteria that any Loan Asset fails to satisfy, in accordance with Article XII.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, neither the Collateral Custodian nor the Collateral Administrator shall have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian or the Collateral Administrator. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that neither the Collateral Custodian nor the Collateral Administrator shall be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(vi) The Collateral Agent agrees Custodian and the Collateral Administrator agree to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents held by it to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit L), as applicable, as requested in order to take any action that allow the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvvii) The Administrative Agent may direct the Collateral Agent Custodian and the Collateral Administrator to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian or the Collateral Administrator, as applicable, hereunder, neither the Collateral Agent Custodian nor the Collateral Administrator shall not be required to take any such incidental action action, hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that neither the Collateral Custodian nor the Collateral Administrator shall be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, or the Collateral Administrator, as applicable (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose such party to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian or the Collateral Administrator, as applicable, requests the consent of the Administrative Agent and the Collateral Custodian or the Collateral Administrator, as applicable does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(xviviii) Nothing herein shall prevent Neither the Collateral Agent Custodian nor the Collateral Administrator shall be liable for any action taken, suffered or any of its Affiliates from engaging omitted by it in other businesses accordance with the request or from rendering services direction of any kind Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Collateral Administrator, as applicable, or the Administrative Agent. Neither the Collateral Custodian nor the Collateral Administrator shall be deemed to have notice or knowledge of any Personmatter hereunder, including an Event of Default, unless written notice thereof is received by it.
(xviiix) Concurrently herewithThe Borrower acknowledges that in accordance with the Customer Identification Program (CIP) requirements under the USA PATRIOT Act and its implementing regulations, the Administrative Agent directs Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may reasonably request for such purposes including, but not limited to, its name, physical address, tax identification number and other information that will help the Collateral Custodian to identify and verify its identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
(x) In connection with each Payment Date, the Collateral Administrator shall calculate, using the information contained in the Collateral Database and any other information normally maintained by the Collateral Custodian, and subject to the Collateral Administrator’s receipt from the Servicer of the information required to be provided to the Collateral Administrator, each item required to be included the Servicing Report pursuant to Section 6.08(b)(iii) and shall prepare and arrange for the delivery of such information to be included in the Servicing Report and shall deliver a draft of such information (in a format mutually agreed upon between the Servicer and the Collateral Administrator) not later than the day that is four (4) Business Days prior to the applicable Payment Date to the Borrower and the Servicer (and, following the delivery of a Notice of Exclusive Control, the Collateral Agent and the Servicer) for the Servicer’s (or Collateral Agent is authorized to enter into Agent’s, as applicable) review. The parties acknowledge and agree that the Sale Agreement Servicer shall provide, and the Securities Account Control AgreementCollateral Administrator shall have no duty or responsibility to determine, the underlying information (or perform the underlying calculations) provided to it. For the avoidance of doubt, all The parties further acknowledge that the Collateral Administrator shall not be responsible for determining the Interest with respect to any Advance, which shall be solely provided by the Administrative Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (John Hancock Comvest Private Income Fund), Loan and Servicing Agreement (AMG Comvest Senior Lending Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant In addition to Section 7.5those expressly set forth elsewhere in this Agreement, the Collateral Agent Construction Supervisor shall perform, on behalf of the Administrative Agent and the Secured Parties, have the following duties and obligationsresponsibilities:
(ia) The Collateral Agent Construction Supervisor shall take and retain custody spend as much time at the site of the Required Loan Documents delivered by Project as it determines to be reasonably necessary to fulfill its duties hereunder but shall, in any event, inspect the Borrower pursuant to and in accordance with Project at least once per calendar week.
(b) During the terms and conditions term of this Agreement, all for the benefit Construction Supervisor shall deliver to the Disbursement Agent, TARC and TEC reasonably detailed written reports on the progress of work on the Project (each, a "Status Report"), at least once during each period of two consecutive calendar months beginning on January 1, March 1, May 1, July 1, September 1 and November 1 of each calendar year. Each Status Report shall include estimates as to (i) the total amount of additional expenditures required to be incurred in order to achieve Substantial Completion of Phase I (the "Phase I Completion Estimate") and, (ii) the total amount of additional expenditures required to be incurred in order to achieve Substantial Completion of Phase II (the "Phase II Completion Estimate"). Such estimates shall be based on estimates and reasonably detailed supporting documentation that TARC shall prepare and provide to the Construction Supervisor. The Construction Supervisor shall review such estimates prepared by TARC as well as such supporting documentation, and if the Construction Supervisor, in its sole judgment, believes that such estimates are reasonable, then the Construction Supervisor shall include such estimates in the Status Report; provided, however, that if the Construction Supervisor, in its sole judgment, does not believe that such estimates are reasonable, then the Construction Supervisor shall revise such estimates in order to produce estimates that it believes are reasonable, and shall include such revised estimates in the Status Report. If the Phase I Completion Estimate exceeds the difference between the Phase I Budgeted Amount and the aggregate amount of funds expended in connection with Phase I on or prior to the date of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Status Report, then the related Loan Checklist, the Collateral Agent Status Report shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided include an instruction to the Collateral Disbursement Agent without any missing pages or sections and (D) to reserve from the related original balance (based on a comparison TEC Disbursement Account to the note or assignment agreement, as applicable) is greater than or Contingency Reserve Account an amount equal to the applicable loan balance listed on lesser of such excess and the Loan Tape (such items (A) through (D) collectively, total amount remaining in the “Review Criteria”)TEC Disbursement Account. In order to facilitate If the foregoing review by difference between the Collateral Agent, Phase I Budgeted Amount and the aggregate amount of funds expended in connection with each delivery of Required Loan Documents hereunder Phase I on or prior to the Collateral Agentdate of the Status Report, exceeds the Collateral Manager Phase I Completion Estimate, then the Status Report shall provide include an instruction to the Collateral Disbursement Agent an electronic copy in EXCEL or a comparable format acceptable to release from the Contingency Reserve Account to the Collateral Agent, as applicable, TEC Disbursement Account an amount equal to the lesser of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number such excess and the name of positive difference, if any, between the Obligor with respect to each related Loan. Notwithstanding anything herein total amount remaining in the Contingency Reserve Account and the Minimum Contingency Reserve Amount; provided, however, that such Status Report shall include an instruction to the contrary, the Collateral Agent’s obligation Trustee to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct not release any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions funds from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.Contingency
Appears in 2 contracts
Sources: Disbursement Agreement (Transamerican Energy Corp), Disbursement Agreement (Transamerican Refining Corp)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.57.5 or resignation pursuant to Section 7.7, the Collateral Agent shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the related Loan Tape Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Agent, the Collateral Manager shall provide to the Collateral Agent a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, ) of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, the Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E D by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report Borrowing Base Certificate from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management ReportBorrowing Base Certificate, deliver such calculation to each of the Administrative Agent, the Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Borrowing Base Certificate. The Collateral Management Report Agent shall also make required calculations for each Payment Date Statement as of the day that is four (4) Business Days prior to the applicable Payment Date, and deliver such calculations to the Borrower and the parties Collateral Manager (and, following the delivery of a Notice of Exclusive Control, the Administrative Agent and the Collateral Manager) for the Collateral Manager’s (or Administrative Agent’s, as applicable) review and approval no later than two (2) Business Days prior to such Payment Date. Upon the approval (which may be by email) by the Collateral Manager (or after delivery of a Notice of Exclusive Control, the Administrative Agent), the Payment Date Statement shall reconcile constitute instructions by the Collateral Manager (or after delivery of a Notice of Exclusive Control, the Administrative Agent) to the Collateral Agent to withdraw on the related Payment Date from the applicable Collection Account and pay or transfer amounts set forth in such discrepancyreport in the manner specified, and in accordance with the priorities established, in Section 2.7 or Section 2.8, as applicable.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”)Agreement.
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all All calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Adjusted Borrowing Value, Assigned Value and Unrestricted Cash of any Obligor shall be made exclusively using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent. Each of the Administrative Agent, the Borrower and the Collateral Manager shall timely provide to the Collateral Agent the information required to be delivered by it under this Agreement and any other Transaction Document, and such other information as may be requested by the Collateral Agent in connection with its verification and reporting duties hereunder. Each of the Administrative Agent, the Borrower and the Collateral Manager shall assist and cooperate with the Collateral Agent in connection with the preparation or verification by the Collateral Agent of all reports, statements, calculations and certificates required in connection with the Collateral Agent’s duties hereunder. Without limiting the generality of the foregoing, the Collateral Manager shall advise the Collateral Agent in a timely manner of the results of any determinations, designations and selections made by it relating to the acquisition or disposition of any Collateral and supply the Collateral Agent with such other information as the Collateral Agent may from time to time request with respect to the Collateral to permit the Collateral Agent to perform its obligations hereunder, including any information that may be required under this Agreement or any other Transaction Document with respect to or as to the designation or characterization of any Loans and the monitoring of any acquisition or disposition of any Loans and whether a credit amendment has occurred. The Collateral Agent shall have no obligation to determine whether any Loan Asset meets the definition of “Eligible Loan”.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the UMB Bank, National Association as Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Loan and Security Agreement (Stepstone Private Credit Fund LLC), Loan and Security Agreement (Stepstone Private Credit Fund LLC)
Duties. On or before From the initial Funding Date, and Closing Date until its resignation or removal pursuant to Section 7.513.10, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, perform the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower any Loan Party pursuant to and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Custodian and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the related Loan Tape Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, Custodian as applicable, ) of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent Custodian is unable to confirm the Review Criteria, the Collateral Agent Custodian shall within one (1) Business Day notify the Collateral Manager Servicer and the Borrower applicable Loan Party of such determination and provide the Collateral Manager Servicer and the Borrower such Loan Party with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral ManagerServicer, Borrower the applicable Loan Party and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E D by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrowersuch Loan Party. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c)Custodian. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian.
(iv) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager Servicer shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent Custodian receives instructions from the Collateral Manager Servicer or the Borrower any Loan Party which conflict with any instructions received by the Administrative Agent, the Collateral Agent Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shallOn or promptly following the Closing Date, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if Custodian shall provide the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, the Borrower and Collateral Manager within one (1) Business Day of receipt the Servicer access to an electronic database maintained by the Collateral Agent of Custodian, which such database shall identify the Required Loan Documents delivered to the Collateral Management Report and Custodian per the parties shall reconcile such discrepancyLoan Checklist.
(vii) The Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Agent Custodian shall make payments in accordance not have or be deemed to have any fiduciary relationship with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other any party hereto or any Secured Party further authorizes in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Loan Documents or otherwise exist against the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoCustodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility. The Collateral Custodian shall not be deemed to assume any obligations or liabilities of the Borrower, the Administrative Agent or Collateral Agent hereunder or under any other Loan Document.
(viii) After the occurrence and during the continuance of an Event of Default, the Collateral Custodian agrees to cooperate with the Collateral Agent and promptly deliver any Required Loan Documents to the Collateral Agent (acting at the direction of the Administrative AgentRequired Lenders) as its agent requested in order to execute and deliver all further instruments and documents, and take all further any action that the Administrative Agent deems Lenders deem necessary or desirable in order for the Collateral Agent to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation. In the event the Collateral Custodian receives instructions from the Borrower which conflict with any instructions received from the Collateral Agent (acting at the direction of the Required Lenders) at any time other than following the occurrence and during the continuance of an Event of Default, the execution Collateral Custodian shall rely on and follow the instructions given by the Collateral Agent. After the occurrence and during the continuance of an Event of Default, the Collateral Custodian shall rely on and follow only the instructions given by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or and shall not follow any of instructions given by the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the CollateralBorrower.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify each acting at the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms direction of the Transaction Documents with respect to the Collateral and (BRequired Lenders) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent Custodian in writing to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Collateral Agent or Administrative Agent, as applicable; provided that the Collateral Custodian shall not be required to take any such action at the direction of the Administrative Agent, the Collateral Agent, or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder (unless it has been provided with an indemnity agreement (including the indemnity provisions contained herein and in the other Transaction Documents) which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent or Collateral Agent, as applicable, and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent or the Collateral Agent, as applicable, within 10 Business Days of its receipt of such request, then the Administrative Agent or the Collateral Agent, as applicable, shall be deemed to have declined to consent to the relevant action.
(xvix) Nothing herein The Collateral Custodian shall prevent not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Agent Custodian or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs or Collateral Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless an authorized officer of the Collateral Agent Custodian has received written notice from a Lender or the Borrower referring to this Agreement, describing such Event of Default, and stating that such notice is a “Notice of Event of Default.” In the absence of receipt of such notice, the Collateral Agent Custodian may conclusively assume that there is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance no Event of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacityDefault.
Appears in 2 contracts
Sources: Loan and Security Agreement (Blue Owl Credit Income Corp.), Loan and Security Agreement (Owl Rock Core Income Corp.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loans” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistUnderlying Instruments, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document must contain a copy of a signature, that such copies appear to bear a reproduction of such signature and (B) based on a review of the applicable note, the related original Loan balance, Loan identification number and Obligor name with respect to such Required Loan Documents have been executed by each party thereto is referenced on the related Loan List and have no missing or mutilated pagesis not a duplicate Loan, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents Underlying Instruments hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Checklist Custodian) that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the original Loan balance with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (1) the original Loan balances of the Loans with respect to which it has received Underlying Instruments is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Custodian shall immediately notify the Administrative Agent and the Collateral Manager of such discrepancy, and (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, the Borrower and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Loan and each of the applicable Review Criteria that such Loan shall cease fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents Underlying Instruments for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that that, the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that provided, further, that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents Underlying Instruments that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the its offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents Underlying Instruments that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent All Underlying Instruments that are originals or copies shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentCustodian. All Underlying Instruments that are delivered to the Collateral Custodian in electronic format shall be saved onto disks and/or onto the Collateral Custodian’s secure computer system, and maintained in a manner so as to permit retrieval and access.
(iv) The Collateral Custodian shall make payments in accordance with Section 2.7 and Section 2.8 (the “Payment Duties”).
(v) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents Underlying Instruments, the non-complying Loans and any the applicable Review Criteria that each such any non-complying Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent Custodian shall, promptly upon its actual receipt of a Collateral Management Report Borrowing Base Certificate from the Collateral Manager on behalf of the Borrower, re-calculate the Borrowing Base and, if the Collateral AgentCustodian’s calculation does not correspond with the calculation provided by the Collateral Manager Borrower on such Collateral Management ReportBorrowing Base Certificate, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent Custodian of such Borrowing Base Certificate. The Collateral Management Report Custodian shall also make required calculations for its Payment Duties as of the Determination Date related to such Payment Date, and deliver such calculations to the Borrower and the parties Collateral Manager (and, following the delivery of a Notice of Exclusive Control, the Administrative Agent and the Collateral Manager) for the Collateral Manager’s (or Administrative Agent’s, as applicable) review no later than two (2) Business Days prior to such Payment Date. The approval of such calculations (which may be by email) by the Collateral Manager (or after delivery of a Notice of Exclusive Control, the Administrative Agent) shall reconcile constitute instructions by the Collateral Manager (or after delivery of a Notice of Exclusive Control, the Administrative Agent) to the Collateral Custodian to withdraw on the related Payment Date from the applicable Collection Account and pay or transfer amounts set forth in such discrepancyreport in the manner specified, and in accordance with the priorities established, in Section 2.7 or Section 2.8, as applicable.
(vii) The In performing its duties, (A) the Collateral Agent Custodian shall make payments in accordance comply with the standard of care and express terms of the Transaction Documents with respect to the collateral that it holds hereunder and (B) calculations made by the Collateral Custodian pursuant to this Section 2.7 and Section 2.8 and as otherwise expressly 7.2(b) shall be made using information provided under this Agreement (by the “Payment Duties”)Borrower or the Collateral Manager to the Collateral Custodian.
(viii) The Administrative Agent parties acknowledges that in accordance with the Customer Identification Program (CIP) requirements under the USA Patriot Act and each other Secured Party further authorizes its implementing regulations, the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable Custodian in order to perfecthelp fight the funding of terrorism and money laundering, protect is required to obtain, verify, and record information that identifies each person or more fully evidence legal entity that establishes a relationship or opens an account with the security interests granted by Collateral Custodian. The Borrower hereby agrees that it shall provide the Borrower hereunderCollateral Custodian with such information as it may reasonably request including, but not limited to, the Borrower’s name, physical address, tax identification number and other information that will help the Collateral Custodian identify and verify the Borrower’s identity (and in certain circumstances, the beneficial owners thereof) such as organizational documents, certificate of good standing, license to do business, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateralpertinent identifying information.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent Custodian shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent Custodian by the Borrower as may be reasonably required by the Collateral AgentCustodian.
(xix) The Collateral Agent Custodian shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xiixi) The Collateral Agent Custodian shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent Custodian or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiiixii) The Collateral Agent Custodian shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Loan and Security Agreement (NMF SLF I, Inc.), Loan and Security Agreement (NMF SLF I, Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.511.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “"Review Criteria”"). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Agent’s Custodian's obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E J) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s Custodian's delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral Agent’s Custodian's duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Custodian located at 4▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other office as shall be specified to the Administrative Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Originator and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each Reporting Datemonth, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(vi) If, in performing its duties under this Agreement, the Collateral Custodian is required to decide between alternative courses of action, the Collateral Custodian may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Custodian does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Custodian may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent Custodian shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Custodian shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has actual knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Trustee shall perform, on behalf perform for the benefit of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Trustee shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and Section 3.2 hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Trustee for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistDocuments, the Collateral Agent Trustee shall review the related Required Loan Documents so delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents documents have been properly executed by each party thereto and have no missing or mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made, (C) each item if listed in on the Loan Checklist has been provided Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Collateral Agent without any missing pages or sections Related Property, and (D) the related original balance (based on a comparison Principal Balance, Loan number and Obligor name with respect to the note or assignment agreement, as applicable) such Loan is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape List and is not a duplicate Loan (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentTrustee, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentTrustee, the Collateral Manager Servicer shall provide to the Collateral Agent Trustee an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Trustee shall determine that (i) the Principal Balances of the Collateral Agent for which it has received Required Loan Documents is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Trustee shall immediately notify the Administrative Agent and the Servicer of such discrepancy, and (ii) any Review Criteria is not satisfied, the Trustee shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by a Loan with any Review CriteriaCriterion, the Collateral Agent Trustee shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Loan and each of the applicable Review Criterion that such Loan shall cease fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentTrustee’s delivery of such report, the Collateral Agent Trustee shall return the Required Loan Documents for any Loan which fails to satisfy any a Review Criteria Criterion to the Borrower. Other than the foregoing, the Collateral Agent Trustee shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Trustee shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided provided, however, that the Collateral Agent Trustee makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that provided, further, that, the Collateral AgentTrustee’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Collateral Administrative Agent set forth and the Servicer by the Trustee in Section 5.5(c)a written notice delivered at least 45 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the All Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with shall be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentTrustee.
(iv) On each Reporting Date, the Collateral Agent Trustee shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents Documents, the non-complying Loans and any the applicable Review Criteria that each such any non-complying Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees Prior to cooperate acquiring a Loan, the Borrower or the Servicer will provide the Trustee with a Trade Ticket, together with the Administrative Agent and deliver any Required Loan Documents proposed form of Borrowing Notice to the Administrative Agent as requested be used in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agentconnection therewith.
(vi) The Collateral Not later than 12:00 p.m. on each Reporting Date, the Servicer shall provide to the Administrative Agent shalland the Trustee via e-mail certain asset level information, promptly upon its actual receipt of a Collateral Management Report from which shall include but not be limited to the Collateral Manager on behalf following information: (x) for each Loan, the name and number of the Borrowerrelated Obligor, calculate the collection status, the loan status, the date of each Scheduled Payment, as applicable, and the Principal Balance, (y) the Borrowing Base and, if and (z) the Principal Collateral Agent’s calculation does not correspond Value and such other items as may reasonably be expected in connection with the calculation provided transactions contemplated by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancythis Agreement.
(vii) The Promptly after receipt thereof, the Trustee shall provide to the Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral Agent held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall make payments the Trustee be under any duty or obligation to take any action on behalf of the Servicer (or Borrower) in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Servicer, prior to the occurrence of a Termination Event or the Administrative Agent, after the occurrence of a Termination Event, in which event the Trustee shall vote, consent or take such other action in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”)such instructions.
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent Trustee shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information similar collateral that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts it holds as provided by the Administrative Agent, the Borrower trustee or the Collateral Manager to the Collateral Agentcustodian for others.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Secured Loan and Servicing Agreement (NewStar Financial, Inc.), Secured Loan and Servicing Agreement (NewStar Financial, Inc.)
Duties. On or before the initial Funding Date, and until Until its removal pursuant to Section 7.55(e), the Collateral Agent Custodian shall perform, perform on behalf of the Administrative Collateral Agent and the Secured Parties, the following duties and obligations:
(iA) The Collateral Agent Custodian shall take and retain custody of the Required Loan Asset Documents delivered by the Borrower pursuant to and any Pledgor in accordance with the terms and conditions of this Pledge Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Collateral Agent as collateral agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistAsset Documents, the Collateral Agent Custodian shall review the such Required Loan Asset Documents delivered to it to confirm that (A) such Required Asset Documents, to the Obligor name matches extent indicated on the Loan Asset Checklist, (B) such Required Loan Documents have been executed by each party thereto and and, on their face, have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) are contained in the Asset File and have a file stamp set forth thereon, (C) each item listed a certificate of insurance (as set forth on the Asset Checklist) is contained in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Asset File, and (D) the related original balance (based on a comparison Asset identification number and Obligor name with respect to the note or assignment agreement, as applicable) such Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape related Asset List and is not a duplicate Asset (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Asset Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to format) that contains the Collateral Agent, as applicable, of Asset Checklist and the related Loan Checklist Asset List that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan Asset identification number and the name of the Obligor with respect to each related LoanAsset. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at At the conclusion of such review, the Collateral Agent is unable to confirm Custodian shall deliver a receipt in the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager form attached hereto as Exhibit 5(b). The Servicer and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager related Pledgor shall have twenty (20) Business Days use commercially reasonable efforts to correct any non-compliance with any a Review CriteriaCriteria identified on such receipt. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review CriteriaTwo times each calendar month, the Collateral Agent Custodian shall promptly notify deliver to the Servicer and the Collateral ManagerAgent an exception report identifying, Borrower with particularity, each Asset and each of the Administrative Agent of applicable Review Criteria that such continued non-compliance and such Loan shall cease Asset fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Collateral Agent or as otherwise directed by the Collateral Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such exception report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrowerapplicable Person; provided that no such approval or direction of the Collateral Agent shall be required after the occurrence of the Credit Agreement Termination Date so long as (i) the Collateral Agent shall continue to have a first priority perfected security interest in the Asset so returned and any Proceeds thereof, and (ii) the Servicer, in requesting the return of such Asset, is acting in good faith consistent with past practice. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Asset Documents; provided further, that (x) by requesting the return of any Asset after the occurrence of the Credit Agreement Termination Date pursuant to this Section 5(b)(ii)(A), the Servicer represents and warrants that clauses (i) and (ii) of the foregoing proviso are true and correct in all material respects, and (y) the Collateral Custodian shall have no duty, obligation or responsibility for making such determination or verifying that such matters are true.
(iiB) In taking and retaining custody of the Underlying InstrumentsRequired Asset Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Collateral Agent and the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Asset Documents or the instruments therein; and provided further that that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iiiC) All Required Loan Asset Documents that are originals kept by the Collateral Custodian shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule 5(b) attached hereto, or at such other office as shall be specified to the Collateral Agent set forth by the Collateral Custodian in Section 5.5(c)a written notice delivered at least forty-five (45) days prior to such change. All Required Loan Asset Documents shall be placed together with an appropriate identifying label electronically tracked and maintained in such a manner so as to permit retrieval and access. The All notes and Loan Registers included in the Pledged Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with be clearly electronically or physically segregated from any other files documents or instruments maintained by the Collateral Custodian. At the reasonable request of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent Initial Borrower shall provide a written report to the Administrative Agent promptly (and the Collateral Manager in any event within ten (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (2010) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(vDays) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality copies of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action Asset Files that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateralhave not been segregated.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xivD) In performing its duties, (A) the Collateral Agent Custodian shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information similar collateral that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts it holds as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agentcollateral custodian.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Pledge Agreement (Capitalsource Inc), Pledge Agreement (Capitalsource Inc)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.511.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “"Review Criteria”"). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification Asset number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.the
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Overland Advantage), Loan and Servicing Agreement (Overland Advantage)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the The Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured PartiesAgent, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the each Borrower pursuant to and Section 5.01(f) in accordance with the terms and conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Within five ten (510) Business Days of its receipt of any the Required Loan Documents for any Portfolio Asset, the Loan Asset Schedule and the related Loan Asset Checklist, the Collateral Agent Custodian shall review the such Required Loan Documents delivered to it to confirm that (A) all Required Loan Documents for such Loan Asset File have been executed (either an original or a copy, as indicated on the Obligor name matches the related Loan Asset Checklist) and have no mutilated pages, (B) such Required filed stamped copies of the UCC and other filings identified on the related Loan Documents have been executed by each party thereto and have no missing or mutilated pagesAsset Checklist are included, (C) each item if listed in on the related Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections for such Portfolio Asset is included and (D) the related original balance (based on a comparison to the note or assignment agreementstated balance, Portfolio Asset number and Obligor name, as applicable) , with respect to such Portfolio Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape Asset Schedule (such items in clauses (A) through (D) above, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Portfolio Asset Servicer shall provide to the Collateral Agent Custodian a hard copy or an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Asset Checklist that which contains a list of all related the Portfolio Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents for any Loan Asset shall be limited to reviewing such Required Loan Documents based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (1) the stated balance of the Loan Asset with respect to which it has received the Required Loan Documents is unable to confirm as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent, the Calculation Agent and the Portfolio Asset Servicer of such discrepancy within one Business Day or (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Portfolio Asset Servicer, the Calculation Agent and the Borrower Administrative Agent of such determination and provide the Collateral Manager and the Borrower Portfolio Asset Servicer with a list of the non-complying Loans Portfolio Assets and the applicable Review Criteria that they fail to satisfy, which the Portfolio Asset Servicer shall promptly provide to the Borrower upon receipt of such. The Collateral Manager Borrower shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E E) by the Collateral Manager Portfolio Asset Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the any Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsLoan Asset File.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents and any other Loan Asset Files, the Collateral Agent Custodian shall be deemed to be acting as the agent of and on behalf of the Secured Parties; provided that (A) the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Loan Asset Files or the instruments therein; therein and provided further that (B) the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals and any other Loan Asset Files delivered to the Collateral Custodian shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Custodian in Schedule III hereto, or at such other office as shall be specified to the Administrative Agent set forth and the Portfolio Asset Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least 30 days prior to such change. All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian on its inventory system and will not commingle the physical Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian with any other files of the Collateral Custodian; provided the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent.
(iv) On each Reporting Datethe 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent Agent, the Borrower and the Collateral Manager Calculation Agent (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required a Loan Documents Asset File and any the applicable Review Criteria that each such any Loan Asset File fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver Notwithstanding any Required Loan Documents provision to the Administrative Agent as requested contrary elsewhere in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative AgentTransaction Documents, the Collateral Agent Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond have any fiduciary relationship with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other any party hereto or any Secured Party further authorizes the Collateral Agent to take such action in its capacity as agent on its behalf such, and to exercise such powers under no implied covenants, functions, obligations or responsibilities shall be read into this Agreement and Agreement, the other Transaction Documents as are expressly delegated to or otherwise exist against the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoCustodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the other parties hereto that the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent Custodian shall not be required to take exercise any such incidental action hereunder, but shall be required to act or to refrain from acting (discretion hereunder and shall be fully protected in acting have no investment or refraining from acting) upon the direction of the Administrative Agentmanagement responsibility.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.), Loan and Servicing Agreement (TCG BDC II, Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal or replacement pursuant to Section 7.511.05 or Section 11.07, as applicable, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent is unable Custodian shall determine that (I) the original balance of the Loan Asset with respect to confirm which it has received Required Loan Documents does not match the Review Criteriabalance set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Administrative Agent and the Borrower Servicer of such determination and provide deliver to the Collateral Manager Administrative Agent and the Borrower with Servicer a certification substantially in the form attached hereto as Exhibit P that includes a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E J) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Custodian located at ▇▇▇▇ ▇▇▇▇ ▇▇▇, Florence, South Carolina, 29501, or at such other office as shall be specified to the Administrative Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each Reporting Datemonth, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility. The Collateral Agent Custodian shall not be deemed to assume any obligations or liabilities of the Borrower or Servicer hereunder or under any other Transaction Document.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund), Loan and Servicing Agreement (HPS Corporate Lending Fund)
Duties. On or before From the initial Funding Date, and Closing Date until its removal or replacement pursuant to Section 7.511.05 or Section 11.07, as applicable, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and (the “Review Period”), the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent is unable Custodian shall determine that (I) the original balance of the Loan Asset with respect to confirm which it has received Required Loan Documents does not match the Review Criteriabalance set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Administrative Agent and the Borrower Servicer of such determination and provide deliver to the Collateral Manager Administrative Agent and the Borrower with Servicer a certification substantially in the form attached hereto as Exhibit P that includes a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E J) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Custodian located at ▇▇▇▇ ▇▇▇▇ ▇▇▇, Florence, South Carolina, 29501, or at such other office as shall be specified to the Administrative Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each Reporting Datemonth, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver Notwithstanding any Required Loan Documents provision to the Administrative Agent as requested contrary elsewhere in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative AgentTransaction Documents, the Collateral Agent Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond have any fiduciary relationship with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other any party hereto or any Secured Party further authorizes the Collateral Agent to take such action in its capacity as agent on its behalf such, and to exercise such powers under no implied covenants, functions, obligations or responsibilities shall be read into this Agreement and Agreement, the other Transaction Documents as are expressly delegated to or otherwise exist against the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoCustodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the other parties hereto that the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent Custodian shall not be required to take exercise any such incidental action hereunder, but shall be required to act or to refrain from acting (discretion hereunder and shall have no investment or management responsibility. The Collateral Custodian shall not be fully protected in acting deemed to assume any obligations or refraining from acting) upon the direction liabilities of the Administrative AgentBorrower or Servicer hereunder or under any other Transaction Document.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.512.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E N) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that provided, further, that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Custodian on the signature pages attached hereto, or at such other office as shall be specified to the Administrative Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to Fifth Street and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent and the Borrower.
(iv) On each Reporting Datethe 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Fifth Street Finance Corp), Loan and Servicing Agreement (Fifth Street Finance Corp)
Duties. On or before the initial Funding Effective Date, and until its removal pursuant to Section 7.514.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the other Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Related Documents delivered by the Borrower pursuant to and Section 7.05 in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan the Related Documents and Loan Checklist (the related Loan Checklist“Review Period”), the Collateral Agent Custodian shall review the Required Loan Related Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear a reproduction of such signature and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable note, the related initial principal loan balance listed when entered into or obtained by the Borrower, loan identification number and Obligor name with respect to such Collateral Loan is referenced on the related Loan Tape Checklist and does not appear to be a duplicate Collateral Loan (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Related Documents hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of Custodian) or the related Loan Checklist that contains a list of all related Required Loan Related Documents and whether they require original signatures, the Loan loan identification number and the name of the Obligor and the initial principal loan balance when entered into or obtained by the Borrower with respect to each related Collateral Loan. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Related Documents shall be limited to reviewing such Required Loan Related Documents based on the information provided on the Loan Checklist. IfIn receiving any Related Documents hereunder, at and in maintaining any listing or providing any report or communication with respect to the conclusion Related Documents held hereunder, the Custodian shall be required only to review such Related Documents in accordance with the Review Criteria. Within one Business Day after the end of such reviewthe Review Period, the Custodian shall notify the Borrower, the Collateral Manager, and the Administrative Agent is unable in writing of any Related Documents listed on the Loan Checklist not included in the related file and any other exceptions to confirm the Review CriteriaCriteria in a form of certificate substantially in the form of Exhibit K (the “Custodial Certificate”). After the Custodian’s delivery of the Custodial Certificate, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) ten Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such reportCustodial Certificate, the Collateral Agent Custodian shall return the Required Loan Related Documents for any Collateral Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRelated Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRelated Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Related Documents or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Related Documents that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c)Custodian Facilities. All Required Loan Related Documents that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent All Related Documents that are originals or copies shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentCustodian. All Related Documents that are delivered to the Custodian in electronic format shall be saved onto disks and/or onto the Custodian’s secure computer system, and maintained in a manner so as to permit retrieval and access.
(iv) On each Reporting Payment Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Collateral Loan for which it holds Required Loan Documents Related Documents, the non-complying Collateral Loans and any the applicable Review Criteria that each such any non-complying Collateral Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent[Reserved].
(vi) The Collateral Agent shallIn no event shall the Custodian be liable for special, promptly upon its actual receipt indirect, punitive or consequential losses or damages of a Collateral Management Report from any kind whatsoever (including but not limited to lost profits) even if the Collateral Manager on behalf Custodian has been advised of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on likelihood of such Collateral Management Report, deliver such calculation to each damages and regardless of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent form of such Collateral Management Report and the parties shall reconcile such discrepancyaction.
(vii) The Any duty on the part of the Custodian with respect to the custody of such Collateral Agent Loans shall make payments be limited to the exercise of reasonable care by the Custodian in accordance with Section 2.7 the physical custody of any such Related Documents and Section 2.8 other documents delivered to it, and as otherwise expressly provided under this Agreement any related instrument, security, credit agreement, assignment agreement and/or other agreements or documents, if any (the collectively, “Payment DutiesFinancing Documents”), that may be delivered to it.
(viii) The Administrative Agent and each other Secured Party further authorizes Notwithstanding anything herein to the contrary, delivery of the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted Loans acquired by the Borrower hereunderwhich constitute Noteless Loans or Participations or which are otherwise not evidenced by a “security” or “instrument” as defined in Section 8-102 and Section 9-102(a)(47) of the UCC, or respectively, shall be made by delivery to enable any the Custodian of them a copy of the loan register with respect to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee such Noteless Loan evidencing registration of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any Collateral Loan on the books and records of the Loans now existing applicable Obligor or hereafter arising, and such other instruments bank agent to the name of the Borrower (or notices, as its nominee) or a copy (which may be necessary or appropriate for the purposes stated hereinabove. Nothing a facsimile copy) of an assignment agreement in this clause shall be deemed to relieve favor of the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateralas assignee.
(ix) IfThe Custodian may assume the genuineness of any such Financing Document it may receive and the genuineness and due authority of any signatures appearing thereon, and shall be entitled to assume that each such Financing Document it may receive is what it purports to be. If an original “security” or “instrument” as defined in performing its duties Section 8-102 and Section 9-102(a)(47) of the UCC, respectively, is or shall be or become available with respect to any Collateral Loan to be held by the Custodian under this Agreement, it shall be the Collateral Agent sole responsibility of the Borrower to make or cause delivery thereof to the Custodian, and the Custodian shall not be under any obligation at any time to determine whether any such original security or instrument has been or is required to decide between alternative courses be issued or made available in respect of action, the any Collateral Agent may request written instructions from the Administrative Agent as Loan or to compel or cause delivery thereof to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such adviceCustodian.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.), Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Agent The Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. With respect to each delivery of Required Loan Documents, each Borrower shall provide or cause to be provided a related Loan Checklist to the Custodian with respect to such Required Loan Documents that are being delivered.
(ii) Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it (as identified on the related Loan Checklist) to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Custodian and (D) the related original balance at the time of assignment or acquisition (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to matches the applicable loan balance listed on the related Loan Tape Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian an electronic copy (in EXCEL or a comparable format acceptable to the Collateral AgentCustodian, as applicable, ) of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number number, the original principal balance of such Loan and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at At the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and Manager, the Borrower with a list of the non-complying Loans Administrative Agent and the applicable Borrower (with a copy to the Collateral Agent) a report in the form attached hereto as Exhibit L identifying each Loan for which it holds Required Loan Documents and the variances to the Review Criteria (the “Custodian Report”), which shall include (i) any discrepancies related to the initial Loan balances of the Loans with respect to which it has received Required Loan Documents and the loan balances provided in the electronic file , and (2) any Review Criteria that they fail to satisfyis not satisfied. The Collateral Manager shall have twenty (20) Business Days after delivery of a Custodian Report to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, the applicable Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. The Custodian shall have no duty to monitor the Collateral Manager’s compliance except to provide an updated Custodian Report upon the Administrative Agent’s written request. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the applicable Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsInstruments or Required Loan Documents.
(iiiii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further provided, further, that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iiiiv) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent Custodian set forth on Annex A hereto, or at such other office as shall be specified to the Administrative Agent and the Collateral Manager by the Custodian in Section 5.5(c)a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian.
(ivv) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after receiving written notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(vvi) The Collateral Agent agrees Custodian agrees, subject to Section 13.2(a)(vii), to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent Custodian receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto).
(xviviii) Nothing herein The Custodian shall prevent be entitled to reasonably assume the Collateral Agent or any genuineness of its Affiliates from engaging in other businesses or from rendering services each such document and the genuineness and due authority of any kind signatures appearing thereon, shall be entitled to any Personassume that each such document is what it purports to be.
(xviiix) Concurrently herewithThe Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Custodian, or the Administrative Agent directs Agent. The Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent and Custodian has knowledge of such matter or written notice thereof is received by the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacityCustodian.
Appears in 2 contracts
Sources: Loan and Security Agreement (Kayne Anderson BDC, Inc.), Loan and Security Agreement (Kayne Anderson BDC, Inc.)
Duties. On or before the initial Funding Date, and until Until its removal pursuant to Section 7.58.5, the Collateral Agent Trustee shall perform, perform on behalf of the Administrative Agent and the Secured Parties, Parties the following duties and obligations:
(i) The Collateral Agent Trustee, as custodian hereunder, shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Sections 3.2 and 3.3 hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt (excluding, for the avoidance of doubt, any Required Loan Documents in the custody of the Trustee as of the Closing Date) of any Required Loan Documents, the Trustee shall review the related Required Loan Documents and (as identified on the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it ) to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents documents have been properly executed by each party thereto and have no missing or mutilated pages, (B) as identified on the Loan Checklist, there is evidence in the file that UCC and other filings (required by the Required Loan Documents) have been made, (C) each item if listed in on the Loan Checklist has been provided Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Collateral Agent without any missing pages or sections Related Property, and (D) the related original principal balance (based on a comparison of such Loan, Loan number and Obligor name with respect to the note or assignment agreement, as applicable) such Loan is greater than or equal to the applicable loan balance listed referenced on the related electronic file delivered with such loan documents as specified below and is not a duplicate Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentTrustee, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentTrustee, the Collateral Manager Servicer shall provide to the Collateral Agent Trustee an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number number, the original principal balance of such Loan and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent Trustee shall determine that (i) the original principal balance of each Loan for which it has received Required Loan Documents is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Trustee shall immediately notify the Administrative Agent and the Servicer of such discrepancy, and (ii) any Review Criteria are not satisfied, the Trustee shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form Servicer does not cure any such non-compliance, it shall provide a written request to the Trustee (such request subject to the approval of Exhibit E the Administrative Agent) for the return by the Collateral Manager and approved by Trustee to the Administrative Agent within ten (10) Business Days Borrower of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the BorrowerCriteria. Other than the foregoing, the Collateral Agent Trustee shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Trustee shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Agent Trustee makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral AgentTrustee’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Collateral Administrative Agent set forth and the Servicer by the Trustee in Section 5.5(c)a written notice delivered at least 45 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the All Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with shall be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentTrustee.
(iv) On each Reporting Date, the Collateral Agent Trustee shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents Documents, the non-complying Loans and any the applicable Review Criteria that each such any non-complying Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees Prior to cooperate acquiring a Loan, the Borrower or the Servicer will provide the Trustee with a Trade Ticket, together with the Administrative Agent and deliver any Required Loan Documents proposed form of Borrowing Notice to the Administrative Agent as requested be used in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agentconnection therewith.
(vi) The Collateral Not later than 12:00 noon four Business Days following the related Determination Date, the Servicer shall provide to the Administrative Agent shalland the Trustee via e-mail certain asset level information, promptly upon its actual receipt of a Collateral Management Report from which shall include but not be limited to the Collateral Manager on behalf following information: (x) for each Loan, the name and number of the Borrowerrelated Obligor, calculate the collection status, the loan status, the date of each Scheduled Payment, as applicable, and the OLB, (y) the Borrowing Base and, if and (z) the Collateral Agent’s calculation does not correspond Adjusted Borrowing Value and such other items as may reasonably be expected in connection with the calculation provided transactions contemplated by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancythis Agreement.
(vii) The Promptly after receipt thereof, the Trustee shall provide to the Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral held hereunder which it receives from the related Obligor or any other Person. In no instance shall the Trustee be under any duty or obligation to take any action on behalf of the Servicer (or Borrower) in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Servicer (prior to the occurrence of a Termination Event) or the Administrative Agent (after the occurrence of a Termination Event) in which event the Trustee shall make payments vote, consent or take such other action in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”)such instructions.
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent Trustee shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information similar collateral that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts it holds as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral AgentTrustee for others.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (NewStar Financial, Inc.), Loan and Servicing Agreement (NewStar Financial, Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Asset Documents delivered by the Borrower Seller pursuant to and Section 3.2 hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistAsset Documents, the Collateral Agent Custodian shall review the related Collateral and Required Loan Asset Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have Collateral has been properly executed by each party thereto and have has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) each item listed in an Insurance Policy exists with respect to any real or personal property constituting the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Related Property, and (D) confirming the related original balance (based on a comparison Outstanding Asset Balance, Asset number and Obligor name with respect to the note or assignment agreement, as applicable) such Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape related Asset List and is not a duplicate Asset (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Asset Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist Asset List or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan Asset identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days to correct any non-compliance with any a Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by an Asset with a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, Borrower Seller and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Loan shall cease Asset fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the BorrowerSeller. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Asset Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Asset Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided provided, however that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Asset Documents or the instruments therein; and provided further provided, further, that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Agent set forth Custodian in Section 5.5(c)a written notice delivered at least forty-five (45) days prior to such change. All Required Loan Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent All Required Asset Documents shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentCustodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan Asset for which it holds Required Loan Documents Asset Documents, the non-complying Assets and any the applicable Review Criteria that each such Loan any non-complying Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent Custodian shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the similar Collateral and (B) all calculations made by the that it holds as Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral AgentCustodian.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Trustee shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Trustee shall take and retain custody of the Required Loan Documents delivered by the Borrower Seller pursuant to and Section 3.2 hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Trustee for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistDocuments, the Collateral Agent Trustee shall review the related Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been properly executed by each party thereto and have no missing or mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been recorded, and (C) each item listed in the Loan Checklist has been provided number and Obligor name with respect to the Collateral Agent without any missing pages or sections and (D) such Loan is properly referenced on the related original balance Loan List and is not a duplicate Asset (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentTrustee, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentTrustee, the Collateral Manager Servicer shall provide to the Collateral Agent Trustee an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist List or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and number, the name of the Obligor and the Outstanding Loan Balance with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset. If, at the conclusion of such review, the Collateral Agent Trustee shall determine that (i) the initial balances of the Loans with respect to which it has received Required Loan Documents is unable to confirm less than the Review CriteriaOutstanding Loan Balances as set forth on the electronic file, the Collateral Trustee shall promptly notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Trustee shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days to correct any non-compliance with any a Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by an Asset with a Loan with any Review Criteria, the Collateral Agent Trustee shall promptly notify the Collateral Manager, Borrower Seller and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfy. Upon written receipt by the Trustee from the Servicer of a request for release of Required Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing Documents in the form of attached hereto as Exhibit E by the Collateral Manager H and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentTrustee’s delivery of such report, the Collateral Agent Trustee shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the BorrowerSeller. Other than the foregoing, the Collateral Agent Trustee shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Trustee shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided provided, however, that the Collateral Agent Trustee makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that provided, further, that, the Collateral AgentTrustee’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Collateral Administrative Agent set forth by the Trustee in Section 5.5(c)a written notice delivered at least 45 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the All Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with shall be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentTrustee.
(iv) The Trustee shall make payments pursuant to the terms of the Monthly Report in accordance with Section 2.7 and Section 2.8 (the “Payment Duties”).
(v) On each Reporting Date, the Collateral Agent Trustee shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan Asset for which it holds Required Loan Documents Documents, the non-complying Assets and any the applicable Review Criteria that each such Loan any non-complying Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent Trustee shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information similar assets that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts it holds as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral AgentTrustee.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (MCG Capital Corp), Sale and Servicing Agreement (MCG Capital Corp)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.511.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan ChecklistAsset Schedule and a hard copy of the Loan Asset Checklist (provided, however, that if more than one hundred (100) Required Loan Documents are delivered at one time to the Collateral Custodian, the Collateral Agent Custodian shall have additional time as it determines is reasonably necessary to conduct such review), the Collateral Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents on their face based on the information provided on the Loan ChecklistAsset Checklist and the Collateral Custodian shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to be on its face. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E J) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form. In performing its duties hereunder, the Collateral Custodian shall be entitled to the protections, benefits and immunities provided to the Collateral Agent, mutatis mutandis.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further provided, further, that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals in physical form shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Custodian located at ▇▇▇▇ ▇▇▇▇ ▇▇▇, Florence, SC 29501, or at such other office as shall be specified to the Administrative Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each Reporting Datemonth, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request or direction of the Administrative Agent, any Secured Party or otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 2 contracts
Sources: Fourth Amendment to Loan and Servicing Agreement (First Eagle Private Credit Fund), Loan and Servicing Agreement (First Eagle Private Credit Fund)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.512.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E N) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that provided, further, that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Agent set forth Custodian in Section 5.5(c)11.02, or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to Solar Capital and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent and the Borrower.
(iv) On each Reporting Datethe 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Solar Capital Ltd.), Loan and Servicing Agreement (Solar Capital Ltd.)
Duties. On or before From the initial Funding Date, and Effective Date until its removal pursuant to Section 7.514.5, the Collateral Document Agent shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Document Agent shall take and retain custody of the Required Loan Documents delivered electronically by the Borrower pursuant to and the definition of “Eligible Loan” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistChecklist (the “Review Period”), the Collateral Document Agent shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, such copies appear to bear a reproduction of an original or copy of a signature and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable loan note, the related initial Loan balance listed when entered into or obtained by the Borrower, Loan identification number and Obligor name with respect to such Loan is referenced on the related Loan Tape Checklist and is not a duplicate Loan (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Document Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Document Agent, the Collateral Custodian shall request that the Collateral Manager provide to (and the Collateral Manager shall provide to promptly provide) the Collateral Document Agent an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Document Agent) listing Loan identification number, as applicablename of Obligor, of and initial Loan balance and the related Loan Checklist per file that contains a list of all related Required Loan Documents and whether they require original signaturesDocuments, the Loan identification number and the name of the Obligor and the initial Loan balance when entered into or obtained by the Borrower with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Document Agent is unable to confirm the shall determine that any Review CriteriaCriteria are not satisfied, the Collateral Document Agent shall within one (1) Business Day notify the Borrower, the Administrative Agent and the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty ten (2010) Business Days to correct any non-compliance with any Review CriteriaCriteria as stated in the preceding sentence. If after After the conclusion of such time period Review Period, the Document Agent shall execute and deliver to the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be a certification substantially in the form attached hereto as Exhibit J, including an Eligible Loan until such non-compliance is curedattached exception report. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Document Agent’s delivery of such report, the Collateral Document Agent shall return the Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Document Agent shall not have any responsibility for reviewing any Underlying Instruments. Notwithstanding anything herein to the contrary, the Document Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Document Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Document Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further provided, further, that the Collateral Document Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept held electronically in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth such electronic format in Section 5.5(c)which such Required Loan Documents were received. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Monthly Reporting Date, the Collateral Document Agent shall provide a written report to the Administrative Agent Agent, the Borrower and the Collateral Manager (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents Documents, the non-complying Loans and any the applicable Review Criteria that each such any non-complying Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver Notwithstanding any Required Loan Documents provision to the Administrative contrary elsewhere in the Transaction Documents, the Document Agent as requested in order to take shall not have any action that the Administrative Agent deems necessary fiduciary relationship with any party hereto or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager in its capacity as such, and no implied covenants, functions, obligations or the Borrower which conflict with any instructions received by the Administrative Agentresponsibilities shall be read into this Agreement, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to or otherwise exist against the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoDocument Agent. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action other parties hereto that the Administrative Document Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them shall not be required to exercise any discretion hereunder and shall have no investment or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral management responsibility. The Document Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall not be deemed to relieve assume any obligations or liabilities of the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateralhereunder or under any other Transaction Document.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xvvi) The Administrative Agent may direct the Collateral Document Agent to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Document Agent hereunder, the Collateral Document Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Document Agent shall not be required to take any action hereunder at the request of the Administrative Agent or otherwise if the taking of such action, in the reasonable determination of the Document Agent, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Document Agent to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Document Agent requests the consent of the Administrative Agent and the Document Agent does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(xvivii) Nothing herein The Document Agent shall prevent not be liable for any action taken, suffered or omitted by it in accordance with the Collateral Agent request or any of its Affiliates from engaging in other businesses or from rendering services direction of any kind to any Person.
(xvii) Concurrently herewithSecured Party, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral extent that this Agreement provides such Secured Party the right to so direct the Document Agent. The Document Agent for shall not be deemed to have notice or knowledge of any actions taken or omitted to be taken under matter hereunder, including an Event of Default, until written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityDocument Agent.
Appears in 2 contracts
Sources: Loan, Security and Collateral Management Agreement (Phillip Street Middle Market Lending Fund LLC), Loan, Security and Collateral Management Agreement (Phillip Street Middle Market Lending Fund LLC)
Duties. On or before From the initial Funding Date, and Second Restatement Date until its removal pursuant to Section 7.58.5, the Collateral Agent Trustee shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Trustee shall take and retain custody of the Required Loan Documents Files delivered by the Borrower pursuant to and Section 3.2 hereof in accordance with the terms and conditions of this Agreement, as bailee for the purposes of the relevant UCC (a “Bailee”), all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Trustee, for the benefit of the Secured Parties. Within five (5) two Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistFile, the Collateral Agent Trustee shall review the such Required Loan Documents delivered to it File to confirm that (A) the Obligor name matches the Loan Checklist, (B) loan documents and instruments in such Required Loan Documents File have been properly executed by each party thereto and have no missing or mutilated pages, (B) there is evidence that UCC and other filings (to extent identified on the related Loan Checklist as being required by the Required Loan File) have been made, (C) each item if listed in on the Loan Checklist has been provided Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Collateral Agent without any missing pages or sections Related Property, and (D) the related original balance Loan balance, Loan number and Obligor name with respect to such Loan is referenced on the related Loan Checklist and is not a duplicate Loan (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape number) (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentTrustee, in connection with each delivery of Required Loan Documents File hereunder to the Collateral AgentTrustee, the Collateral Manager Servicer shall provide to the Collateral Agent Trustee an electronic copy file (in EXCEL Microsoft EXCEL® or a comparable format acceptable to format) that contains the Collateral AgentLoan number, as applicableObligor name, of original loan balance and the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at At the conclusion of such review, the Collateral Agent is unable Trustee shall deliver to confirm the Review CriteriaServicer, the Borrower and the Administrative Agent a collateral receipt in the form of Exhibit L attached hereto (a “Collateral Agent Receipt”). If any Collateral Receipt discloses any deficiencies (a “Deficiency”) in any of the Required Loan Files, the Trustee shall within one (1) Business Day promptly notify the Collateral Manager Administrative Agent and the Borrower Servicer of such determination Deficiency and provide them with an exception report specifying the Collateral Manager Loans which have a Deficiency and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty fifteen (2015) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent Trustee shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance determination by providing an updated exception report to such Persons identifying, with particularity, each Loan and each of the applicable Review Criteria that such Loan shall cease fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Agent within ten fifteen (1015) Business Days of the Collateral AgentTrustee’s delivery of such report, the Collateral Agent Trustee shall return the Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the BorrowerBorrower or its designee. Other than the foregoing, the Collateral Agent Trustee shall not have any responsibility for reviewing reviewing, inspecting or examining any Underlying InstrumentsRequired Loan File to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they are other than what they purport to be on their face.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Files, the Collateral Agent Trustee shall be deemed to be acting as the agent Bailee of the Secured Parties; provided that the Collateral Agent Trustee makes no representations as to the enforceability of any Required Loan File documents or the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Files or the instruments therein; and provided further that that, the Collateral AgentTrustee’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents File documents that are originals or copies shall be kept in fire resistant vaultsfacilities in accordance with the Trustee’s customary standards for such custody, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Collateral Administrative Agent set forth and the Servicer by the Trustee in Section 5.5(c)a written notice delivered at least 45 days prior to such change. All Required Loan Documents Files shall be placed together with an appropriate identifying label identified using a barcode system and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On the third Business Day of each Reporting Datemonth, the Collateral Agent Trustee shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral AgentTrustee) identifying each Loan for which it holds Required Loan Documents an updated list of Loans in its possession and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is curedupdated exceptions report.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agentperforming its custodial duties, the Collateral Agent Trustee shall rely on use the same degree of care and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and attention as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database employs with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily similar collateral that it holds as custodian for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agentothers.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Revolving Credit Agreement (NewStar Financial, Inc.), Revolving Credit Agreement (NewStar Financial, Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Asset Documents delivered by the Borrower Seller pursuant to and Section 3.2 in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistAsset Documents, the Collateral Agent Custodian shall review the related Collateral and Required Loan Asset Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have Collateral has been properly executed by each party thereto and have has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) each item listed in an Insurance Policy exists with respect to any real or personal property constituting the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Related Property, and (D) confirming the related original balance (based on a comparison Outstanding Asset Balance, Asset number and Obligor name with respect to the note or assignment agreement, as applicable) such Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape related Asset List and is not a duplicate Asset (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Asset Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist Asset List or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan Asset identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days to correct any non-compliance with any a Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by an Asset with a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, Borrower Seller and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Loan shall cease Asset fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the BorrowerSeller. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Asset Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Asset Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Asset Documents or the instruments therein; and provided further that that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Agent set forth Custodian in Section 5.5(c)a written notice delivered at least forty-five (45) days prior to such change. All Required Loan Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent All Required Asset Documents shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentCustodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan Asset for which it holds Required Loan Documents Asset Documents, the non-complying Assets and any the applicable Review Criteria that each such Loan any non-complying Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent Custodian shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the similar Collateral and (B) all calculations made by the that it holds as Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral AgentCustodian.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. On or before the initial Funding Effective Date, and until its removal pursuant to Section 7.513.4, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) In connection with the delivery of a Loan Checklist Delivery Letter pursuant to Section 2.2(b)(iv), 2.15(a) or 2.15(c) on a Funding Date, a Substitution Date or Acquisition Date, as the case may be, no later than three (3) Business Days after such Funding Date, Substitution Date or Acquisition Date, as applicable, the Borrower shall deliver to the Administrative Agent and the Collateral Custodian electronic copies of the Required Loan Documents for the Transferred Loans Conveyed on such Funding Date, Substitution Date or Acquisition Date. The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loans” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within ten (10) Business Days following the any Funding Date (and provided the Collateral Custodian has received the Transferred Loan Checklist) with respect to the Transferred Loans Conveyed on such Funding Date and five (5) Business Days of its receipt of any Required Loan Documents and the related Transferred Loan ChecklistChecklist with respect to any Substitute Loans and any Acquired Loans (the “Review Period”), the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear an original or a reproduction of such signature and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable loan note, the related initial Loan balance listed when entered into or obtained by the Borrower, Loan identification number and Obligor name with respect to such Loan is referenced on the related Loan Tape List and is not a duplicate Loan (such items (A) through (DB) collectively, the “Review Criteria”). In ) and shall prepare a report substantially in the form of Exhibit H (the “Custodial Receipt”) including the Exceptions Report attached as Schedule A. If so requested by the Collateral Custodian, in order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of Custodian) or the related Transferred Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance when entered into or obtained by the Borrower with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at At the conclusion of such review, the Collateral Agent is unable to confirm the Custodian shall determine that there are discrepancies in any Review Criteria, the Collateral Agent Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with include a list of the non-complying Loans Review Criteria discrepancies (an “Exception Report”) in its Custodial Receipt to the Servicer and the applicable Review Criteria that they fail to satisfyAdministrative Agent. The Collateral Manager Servicer shall have twenty ten (2010) Business Days to correct any non-compliance with any Review CriteriaCriteria listed on the Exception Report. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by a Loan with any Review Criteriadiscrepancies listed on the Exception Report to the Administrative Agent’s satisfaction, the Collateral Administrative Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease determination by providing a written notice to be an Eligible Loan until such non-compliance is curedthe Servicer. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Borrower and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsLoan Documents. The Borrower shall deliver, or cause to be delivered, to the Collateral Custodian all of the Required Loan Documents for each Loan Document owned by the Borrower at any time during the term of this Agreement at the address identified herein. The Collateral Custodian shall not be responsible for any Loan Document until actually received by it. Notwithstanding any language to the contrary herein, the Collateral Custodian shall make no representations as to, and shall not be responsible to verify, (i) the validity, legality, ownership, title, perfection, priority, enforceability, due authorization, recordability, sufficiency for any purpose, or genuineness of any of the documents contained in the Loan Documents or (ii) the collectability, insurability, effectiveness or suitability of any such Loan Document.
(ii) In taking and retaining custody of the Underlying InstrumentsLoan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals or copies of promissory notes or allonges shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c)Custody Facilities. All Required Loan Documents that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit identification, retrieval and access. The Collateral Agent shall segregate the Required All Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of that are delivered to the Collateral AgentCustodian in electronic format shall be saved onto disks and/or onto the Collateral Custodian’s secure computer system, and maintained in a manner so as to permit retrieval and access.
(iv) The Servicer and the Administrative Agent may request that the Collateral Custodian provide an updated list of Loans for which it holds Required Loan Documents and the related Exception Report.
(v) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents Documents, the non-complying Loans and any the applicable Review Criteria that each such any non-complying Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Credit Agreement (Brightwood Capital Corp I), Credit Agreement (Brightwood Capital Corp I)
Duties. On or before From the initial Funding Date, and Effective Date until its removal pursuant to Section 7.514.5, the Collateral Agent Document Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Document Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loans” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistChecklist (the “Review Period”), the Collateral Agent Document Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear an original or a reproduction of such signature and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable loan note, the related initial Loan balance listed when entered into or obtained by the Borrower, Loan identification number and Obligor name with respect to such Loan is referenced on the related Collateral Report and is not a duplicate Loan Tape (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentDocument Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentDocument Custodian, the Collateral Investment Manager shall provide to the Collateral Agent Document Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral AgentDocument Custodian) listing Loan Identification Number, as applicableName of Obligor, of and initial Loan balance and the related Loan Checklist per file that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance when entered into or obtained by the Borrower with respect to each related Loan. After the Review Period, the Document Custodian shall execute and deliver to the Investment Manager and the Administrative Agent a certification (a “Document Custodian Certificate”) substantially in the form attached hereto as Exhibit K, including an attached exception report (an “Exception Report”). In addition, if requested in writing in the form of Exhibit E by the Investment Manager and approved by the Administrative Agent within ten (10) Business Days of the Document Custodian’s delivery of such report, the Document Custodian shall return the Underlying Instruments for any Loan which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Document Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything herein to the contrary, the Collateral AgentDocument Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Document Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Document Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral AgentDocument Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Document Custodian located at ▇▇▇▇ ▇▇▇▇ ▇▇▇, Florence, SC 129501, or at such other office as shall be specified to the Administrative Agent set forth and the Investment Manager by the Document Custodian in Section 5.5(c)a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Document Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentDocument Custodian.
(iv) On each Reporting Date, the Collateral Agent Document Custodian shall provide a written report to the Administrative Agent and the Collateral Investment Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be including an Eligible Loan until such non-compliance is curedException Report.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver Notwithstanding any Required Loan Documents provision to the Administrative Agent as requested contrary elsewhere in order to take the Transaction Documents, the Document Custodian shall not have any action that the Administrative Agent deems necessary fiduciary relationship with any party hereto or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager in its capacity as such, and no implied covenants, functions, obligations or the Borrower which conflict with any instructions received by the Administrative Agentresponsibilities shall be read into this Agreement, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to or otherwise exist against the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoDocument Custodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action other parties hereto that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them Document Custodian shall not be required to exercise any discretion hereunder and shall have no investment or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabovemanagement responsibility. Nothing in this clause The Document Custodian shall not be deemed to relieve assume any obligations or liabilities of the Borrower or the Collateral Investment Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateralhereunder or under any other Transaction Document.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xvvi) The Administrative Agent may direct the Collateral Agent Document Custodian to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Document Custodian hereunder, the Collateral Agent Document Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that, the Document Custodian shall not be required to take any action hereunder at the request of the Administrative Agent or otherwise if the taking of such action, in the reasonable determination of the Document Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Document Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Document Custodian requests the consent of the Administrative Agent and the Document Custodian does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(xvivii) Nothing herein The Document Custodian shall prevent not be liable for any action taken, suffered or omitted by it in accordance with the Collateral Agent request or any of its Affiliates from engaging in other businesses or from rendering services direction of any kind to any Person.
(xvii) Concurrently herewithSecured Party, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for extent that this Agreement provides such Secured Party the right to so direct the Document Custodian. The Document Custodian shall not be deemed to have notice or knowledge of any actions taken matter hereunder, including an Event of Default, unless a Responsible Officer of the Document Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityDocument Custodian.
Appears in 2 contracts
Sources: Loan, Security and Investment Management Agreement (Investcorp US Institutional Private Credit Fund), Loan, Security and Investment Management Agreement (Investcorp US Institutional Private Credit Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the The Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured PartiesAgent, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Portfolio Asset Files and the Required Loan Portfolio Documents delivered by the Portfolio Asset Servicer and Borrower pursuant to and in accordance with the terms and conditions of this AgreementSection 3.02(c) or 3.04(d), all for the benefit of the Administrative Agent on behalf of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Portfolio Documents and (if the related Loan ChecklistCollateral Custodian receives no more than 10 Portfolio Asset Files during such five Business Day period) or within a reasonable timeframe as mutually agreed upon, the Collateral Agent Custodian shall review the such Required Loan Portfolio Documents delivered to it to confirm that (A) the principal amount and the Obligor name on the applicable Loan Agreement and any related promissory note matches that on the Portfolio Asset Schedule and the Portfolio Asset number on the applicable Loan ChecklistAgreement matches that on the Portfolio Asset Schedule, as applicable, (B) such Required Loan Documents Portfolio Documents, have been executed by each party thereto (either an original or a copy, as indicated on the related Portfolio Asset Checklist), appear to relate to such Portfolio Asset and have no missing or mutilated pages, (C) each item listed in filed copies of the Loan UCC financing statements and other filings identified on the related Portfolio Asset Checklist has been provided to the Collateral Agent without any missing pages or sections are included and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance if listed on the Loan Tape related Portfolio Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Portfolio Asset is included (such the items (A) through (D) to be reviewed pursuant to this sentence, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents a Portfolio Asset File hereunder to the Collateral AgentCustodian, the Collateral Manager Portfolio Asset Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be proceeded by an electronic copy in EXCEL and separately uploaded by the Borrower or a comparable format acceptable the Portfolio Asset Servicer or its designee to the Collateral Agentdesignated ▇▇▇▇▇▇▇.▇▇▇; provided that each .pdf document will be identified with the loan number in the format “LoanNumber.DocumentName.pdf” (example, as applicable, 12345.mortgage.pdf)) of the related Loan Portfolio Asset Checklist that which contains a list of all related Required Loan Documents and whether they require original signaturesthe Portfolio Asset information with respect to the Portfolio Asset File being delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents Portfolio Asset File shall be limited to reviewing such Required Loan Documents the Review Criteria and based on the information provided on the Loan related Portfolio Asset Checklist. If, at the conclusion of such review, the Collateral Agent is unable Custodian shall determine that (1) the principal balance of the Portfolio Asset with respect to confirm which it has received the Review CriteriaPortfolio Asset File does not match the principal balance set forth on the Portfolio Asset Schedule, the Collateral Agent Custodian shall notify the Administrative Agent, Initial Lender and the Facility Servicer of such discrepancy within one Business Day or (2) any other Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Borrower, Administrative Agent, Initial Lender and the Borrower Facility Servicer of such determination and provide the Collateral Manager Borrower and the Borrower Facility Servicer with a list of the non-complying Loans Portfolio Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Borrower shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time periodIn addition, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as if requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or writing by the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments or Portfolio Asset Servicer in accordance with Section 2.7 9.08 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent approved by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Administrative Agent (acting at the direction of the Administrative AgentMajority Lenders) as its agent to execute and deliver all further instruments and documents, and take all further action that within ten Business Days of the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any Collateral Custodian’s delivery of them to exercise or enforce any of their respective rights hereunder, including, without limitationsuch report, the execution by Collateral Custodian shall return any Portfolio Asset File which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or Custodian shall not have any responsibility for reviewing any Portfolio Asset File.
(ii) In taking and retaining custody of the Loans now existing or hereafter arisingPortfolio Asset Files, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause Collateral Custodian shall be deemed to relieve be acting as the Borrower or the Collateral Manager of their respective obligations to protect the interest agent of the Collateral Administrative Agent (for the benefit on behalf of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, ; provided that (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect Custodian makes no representations as to the Collateral existence, perfection or priority of any Lien on the Portfolio Asset Files or the instruments therein and (B) all calculations made the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) All Portfolio Asset Files shall be continuously stored in fire resistant vaults, rooms or cabinets at the locations specified as the address of the Collateral Custodian on Schedule IV or at such other office as shall be specified to the Administrative Agent, Facility Servicer and the Borrower by the Collateral Agent pursuant Custodian in a written notice delivered at least 30 days prior to this Section 7.2(bsuch change. The Collateral Custodian shall segregate the Portfolio Asset Files on its inventory system.
(iv) using information that is not routinely maintained by On each Reporting Date following the first delivery of Required Portfolio Documents to the Collateral AgentCustodian, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor the Collateral Custodian shall be made using such amounts as provided by provide a written report to the Administrative Agent, the Borrower or and the Collateral Manager Lenders (in a form mutually agreeable to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon at the direction of the Administrative AgentMajority Lenders) and the Collateral Custodian) identifying each Portfolio Asset for which it holds a Portfolio Asset File and the applicable Review Criteria that any Portfolio Asset File fails to satisfy. The Borrower shall have ten Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria.
(xviv) Nothing The Collateral Custodian shall have no duties or obligations other than those specifically set forth herein shall prevent or as may subsequently be agreed to in writing by the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Personparties hereto.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (ACRES Commercial Realty Corp.), Loan and Servicing Agreement (Exantas Capital Corp.)
Duties. On or before From the initial Funding Date, and Original Closing Date until its removal pursuant to Section 7.512.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Sections 3.02(a) and 3.04(b) in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections is included and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E N) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that provided, further, that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Custodian on the signature pages attached hereto, or at such other office as shall be specified to the Administrative Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to BDCA and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent and the Borrower.
(iv) On each Reporting Datethe 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (A) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiB) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Business Development Corp of America), Loan and Servicing Agreement (Business Development Corp of America)
Duties. On The Portfolio Asset Servicer shall take or before cause to be taken all such actions as may be necessary or advisable to oversee and administer the initial Funding Date, and until its removal pursuant Underlying Servicers in respect of the payments to Section 7.5, the Borrower under the Collateral Agent shall performPortfolio from time to time that are to be Collections, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and all in accordance with Applicable Law and the terms Servicing Standard and conditions of this Agreement, all for to take the benefit actions of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Agent, the Collateral Manager shall provide to the Collateral Agent an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers Portfolio Asset Servicer under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoDocuments. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction duties of the Administrative AgentPortfolio Asset Servicer shall include the following:
(i) as its agent maintaining or causing the Underlying Servicers to execute and deliver all further instruments and documents, and take all further action that maintain the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence following records for each Loan Asset:
a. any Loan Asset Assignment;
b. the security interests granted by instructions from the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower (or the Collateral Manager of their respective obligations Portfolio Asset Servicer on the Borrower’s behalf) to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the CollateralObligors, including Underlying Servicers or Counterparty Lenders to file financing and continuation statements make all payments in respect of such Loan Asset directly to the CollateralUnderlying Servicer Account or the Collection Account;
c. as applicable, any Participation Agreement, any related supplement to such Participation Agreement and the related direction from the related Counterparty Lender to the related Obligor or Underlying Servicer (1) to make all payments in respect of such Loan Asset directly to the Underlying Servicer Account or the Collection Account and (2) to deliver to the Portfolio Asset Servicer a copy of all requests, notices and reports required to be delivered by such Counterparty Lender or such Underlying Servicer to the Borrower under such Participation Agreement, in each case, acknowledged by such Underlying Servicer;
d. the related Loan Asset Checklist or a supplement thereto, copies of the related Loan Agreement and each other agreement instrument or certificate and other document identified in such Loan Asset Checklist, and copies of any amendment, waiver, supplement or modification of any thereof that is delivered to the Portfolio Asset Servicer;
e. each material request, notice and report delivered by an Obligor, Counterparty Lender or Underlying Servicer to the Portfolio Asset Servicer, to the extent received by the Portfolio Asset Servicer hereunder, and all requests, notices and other correspondence delivered by the Portfolio Asset Servicer, under a Loan Agreement or Participation Agreement; and
f. all account statements, reports and other material documents and correspondence received by the Portfolio Asset Servicer from the Collection Account.
(ixii) If, in performing its duties under this Agreement, maintaining or causing the Collateral Agent is required Underlying Servicers to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database maintain all necessary servicing records with respect to the Collateral (the “Collateral Database”), Portfolio and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and providing such records to the extent of, information furnished Administrative Agent and each Lender (with a copy to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xiCustodian) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide together with such other information with respect to the Collateral as may be routinely maintained by Portfolio (including information relating to the Collateral Agent or Portfolio Asset Servicer’s performance under this Agreement) as may be required by this Agreement, in each case hereunder or as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower Initial Lender or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent Majority Lenders may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunderreasonably request, the Collateral Agent shall including but not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.limited to:
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Cim Group, Inc.), Loan and Servicing Agreement (Cim Real Estate Finance Trust, Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the The Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured PartiesAgent, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and Section 5.01(f) in accordance with the terms and conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Within five ten (510) Business Days of its receipt of any the Required Loan Documents for any Portfolio Asset, the Loan Asset Schedule and the related Loan Asset Checklist, the Collateral Agent Custodian shall review the such Required Loan Documents delivered to it to confirm that (A) all Required Loan Documents for such Loan Asset File have been executed (either an original or a copy, as indicated on the Obligor name matches the related Loan Asset Checklist) and have no mutilated pages, (B) such Required filed stamped copies of the UCC financing statements and other filings identified on the related Loan Documents have been executed by each party thereto and have no missing or mutilated pagesAsset Checklist are included, (C) each item if listed in on the related Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections for such Portfolio Asset is included and (D) the related original balance (based on a comparison to the note or assignment agreementstated balance, Portfolio Asset number and Obligor name, as applicable) , with respect to such Portfolio Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape Asset Schedule (such items in clauses (A) through (D) above, collectively, the “"Review Criteria”"). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Portfolio Asset Servicer shall provide to the Collateral Agent Custodian a hard copy or an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Asset Checklist that which contains a list of all related the Portfolio Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification Portfolio Asset number and the name of the Obligor with respect to each related Loansuch Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral Agent’s Custodian's obligation to review the Required Loan Documents for any Loan Asset shall be limited to reviewing such Required Loan Documents the Review Criteria based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (1) the stated balance of the Loan Asset with respect to which it has received the Required Loan Documents is unable to confirm not as is set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent, the Calculation Agent and the Portfolio Asset Servicer of such discrepancy within one Business Day or (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Portfolio Asset Servicer, the Calculation Agent and the Borrower Administrative Agent of such determination and provide the Collateral Manager and the Borrower Portfolio Asset Servicer with a list of the non-complying Loans Portfolio Assets and the applicable Review Criteria that they fail to satisfy, which the Portfolio Asset Servicer shall promptly provide to the Borrower upon receipt of such. The Collateral Manager Borrower shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E E) by the Collateral Manager Portfolio Asset Servicer and approved by the Administrative Agent Majority Lenders within ten (10) 10 Business Days of the Collateral Agent’s Custodian's delivery of such report, the Collateral Agent Custodian shall return the any Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsLoan Asset File.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of and on behalf of the Secured Parties; provided that (A) the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Loan Asset Files or the instruments therein; therein and provided further that (B) the Collateral Agent’s Custodian's duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals delivered to the Collateral Custodian shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Custodian in Schedule III hereto, or at such other office as shall be specified to the Administrative Agent set forth and the Portfolio Asset Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least 30 days prior to such change. All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian on its inventory system and will not commingle the physical Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian with any other files of the Collateral AgentCustodian; provided the Collateral Custodian shall segregate any commingled files upon written request of the Majority Lenders.
(iv) On each Reporting Datethe 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent Agent, the Borrower and the Collateral Manager Calculation Agent (in a form mutually agreeable to the Administrative Agent (at the direction of the Majority Lenders) and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required a Loan Documents Asset File and any the applicable Review Criteria that each such any Loan Asset File fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver Notwithstanding any Required Loan Documents provision to the Administrative Agent as requested contrary elsewhere in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative AgentTransaction Documents, the Collateral Agent Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond have any fiduciary relationship with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other any party hereto or any Secured Party further authorizes the Collateral Agent to take such action in its capacity as agent on its behalf such, and to exercise such powers under no implied covenants, functions, obligations or responsibilities shall be read into this Agreement and Agreement, the other Transaction Documents as are expressly delegated to or otherwise exist against the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoCustodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the other parties hereto that the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent Custodian shall not be required to take exercise any such incidental action hereunder, but shall be required to act or to refrain from acting (discretion hereunder and shall be fully protected in acting have no investment or refraining from acting) upon the direction of the Administrative Agentmanagement responsibility.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Carlyle Secured Lending III), Loan and Servicing Agreement (Carlyle Secured Lending III)
Duties. On or before the initial Funding Closing Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents Receivable Files delivered by the Borrower Borrowers pursuant to and Section 3.1 in accordance with the terms and conditions of this Agreement, as bailee for the purposes of the relevant UCC (a “Bailee”), all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within (i) two (2) Business Days of its receipt of any Required Receivable File with respect to Receivables being acquired from Sellers of Receivables included in the Collateral on a prior Funding Date and (ii) five (5) Business Days of its receipt of any Required Loan Documents and Receivable File with respect to Receivables being acquired from Sellers of Receivables not previously included in the related Loan ChecklistCollateral, the Collateral Agent Custodian shall review the such Required Loan Documents delivered to it Receivable File to confirm that (A) the Obligor name matches the Loan Checklist, (B) loan documents and instruments in such Required Loan Documents Receivable File have been properly executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (DB) the related original principal balance of the Receivable (for closed end contracts only), contract or other identifying number and Obligor name with respect to such Receivable is referenced on the related Receivables List and is not a duplicate Receivable (based on a comparison to the note contract number or assignment agreement, as applicableother identifying number) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through and (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each the delivery of Required Loan Documents Receivable Files hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL Excel® or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Checklist format) that contains a list of all related Required Loan Documents the contract number, Obligor name and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loanloan balance (if applicable). Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at At the conclusion of such review, the Collateral Custodian shall deliver to the Servicer, the Borrowers and the Administrative Agent is unable to confirm a collateral receipt in the Review Criteriaform of Exhibit K attached hereto (a “Collateral Receipt”). If any Collateral Receipt discloses any deficiencies (a “Deficiency”) in any of the Required Receivable Files, the Collateral Agent Custodian shall within one (1) Business Day promptly notify the Collateral Manager Administrative Agent and the Borrower Servicer of such determination Deficiency and provide them with an exception report specifying the Collateral Manager Receivables which have a Deficiency and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by a Loan Receivable with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, Borrower Borrowers and the Administrative Agent of such continued non-compliance determination by providing an updated exception report to such Persons identifying, with particularity, each Receivable and each of the applicable Review Criteria that such Loan shall cease Receivable fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Receivable which fails to satisfy any a Review Criteria to the BorrowerBorrowers or their applicable designee. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing reviewing, inspecting or examining any Underlying InstrumentsRequired Receivable File to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they are other than what they purport to be on their face.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Receivable Files, the Collateral Agent Custodian shall be deemed to be acting as the agent Bailee of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the enforceability of any Required Receivable File documents or the existence, perfection or priority of any Lien on the Underlying Instruments Required Receivable Files or the instruments therein; and provided further that that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents Receivable File documents that are originals or copies shall be kept in fire resistant vaultsfacilities in accordance with the Collateral Custodian’s customary standards for such custody, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Agent set forth Custodian in Section 5.5(c)a written notice delivered at least forty-five (45) days prior to such change. All Required Loan Documents Receivable File documents that are originals or copies shall be placed together with an appropriate identifying label identified using a barcode system and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent Custodian shall make payments pursuant to the terms of the Servicing Report in accordance with Section 2.7 and Section 2.8 and 2.8, as otherwise expressly provided under this Agreement applicable, (the “Payment Duties”).
(viiiv) The On the third Business Day of each month, the Collateral Custodian shall provide to the Administrative Agent and each other Secured Party further authorizes the Collateral Agent Servicer (in a form acceptable to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by and the Collateral Agent as secured party/assignee Custodian) an updated list of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, Receivables in its possession and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateralan updated exceptions report.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xivvi) In performing its duties, (A) the Collateral Agent Custodian shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information similar collateral that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts it holds as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agentcollateral custodian for others.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Revolving Credit Agreement (CLST Holdings, Inc.), Revolving Credit Agreement (CLST Holdings, Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loan” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistChecklist (the “Review Period”), the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear an original or a reproduction of such signature and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable loan note, the related initial Loan balance listed when entered into or obtained by the Borrower, Loan identification number and Obligor name with respect to such Loan is referenced on the related Loan Tape checklist and is not a duplicate Loan (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral AgentCustodian) listing Loan identification number, as applicablename of Obligor, of and initial Loan balance and the related Loan Checklist checklist per file that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance when entered into or obtained by the Borrower with respect to each related Loan. Notwithstanding anything herein to If after the contraryReview Period, any of the Review Criteria are not satisfied, the Collateral Agent’s obligation to review Custodian shall provide the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such reviewCollateral Manager, the Collateral Administrative Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list report identifying each of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying Instruments. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan checklist.
(ii) In taking and retaining custody of the Underlying Instruments, Instruments the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the offices of Custody Facilities (or such other location identified to the Collateral Administrative Agent set forth in Section 5.5(cand Borrower). All such Required Loan Documents that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the All such Required Loan Documents on its inventory system and will not commingle that are originals or copies shall be clearly segregated from any other documents or instruments maintained by the physical Collateral Custodian. All such Required Loan Documents with any other files of that are delivered to the Collateral AgentCustodian in electronic format shall be saved onto disks and/or onto the Collateral Custodian’s secure computer system, and maintained in a manner so as to permit retrieval and access.
(iv) The Collateral Custodian shall make payments in accordance with Section 2.7 and Section 2.8 (the “Payment Duties”).
(v) On each Reporting DateDate following the commencement of the Revolving Period, the Collateral Agent Custodian shall provide a written report to the Administrative Agent Agent, the Borrower, and the Collateral Manager (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be including an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agentexception report.
(vi) The Collateral Agent shallFollowing the commencement of the Revolving Period, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation Custodian shall render to each of the Administrative Agent, Borrower Agent and Collateral Manager within one (1) Business Day a daily report of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect all deposits to and withdrawals from the Collateral (Accounts for such Business Day and the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition outstanding balance as of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts end of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each such Business Day, provide to the Collateral Manager daily reports reflecting and (y) a report of settled trades for such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Loan, Security and Collateral Management Agreement (Investcorp Credit Management BDC, Inc.), Loan, Security and Collateral Management Agreement (Investcorp Credit Management BDC, Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.512.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Sections 3.02(a) and 3.04(b) in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Asset Checklist, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Asset Checklist has been provided to the Collateral Agent without any missing pages or sections and Custodian (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian is unable to confirm clauses (A) or (D) of the Review Criteria, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any other Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Servicer and the Borrower Administrative Agent of such determination and provide the Collateral Manager Servicer and the Borrower Administrative Agent with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time periodperiod and the Administrative Agent has provided the Servicer with written confirmation of such non-compliance, such Loan Asset shall cease be deemed to be a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such deficiency is cured. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents.
(ii) In taking and retaining custody of the Required Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified in Section 5.06(c) or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days (or such shorter notice period as consented to by the Administrative Agent) prior to such change. All Required Loan Documents shall be placed together with an Eligible appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Custodian shall segregate the Required Loan until Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to Solar and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent and the Borrower.
(iv) On the 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), commencing in July 2016, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy. The Servicer shall have 20 Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period and the Administrative Agent has provided the Servicer with written confirmation of such non-compliance, such Loan Asset shall be deemed to be a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such deficiency is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian. Notice or knowledge of any matter by ▇▇▇▇▇ Fargo in its capacity as Administrative Agent for any actions taken or omitted to be taken Lender and other publically available information shall not constitute notice or knowledge of the Collateral Custodian.
(iv) The parties acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the Sale Agreement USA PATRIOT Act and its implementing regulations, the Securities Account Control Agreement Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each person or legal entity that establishes a relationship with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such capacityinformation as it may reasonably request including, but not limited to, the Borrower’s name, physical address, tax identification number and other information that will help the Collateral Custodian to identify and verify the Borrower’s identity (and in certain circumstances, the beneficial owners thereof) such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Solar Capital Ltd.), Consent and Omnibus Amendment (Solar Capital Ltd.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Asset Documents delivered by the Borrower Seller pursuant to and Section 3.2 in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistAsset Documents, the Collateral Agent Custodian shall review the related Collateral and Required Loan Asset Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have Collateral has been properly executed by each party thereto and have has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) each item listed in an Insurance Policy exists with respect to any real or personal property constituting the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Related Property, and (D) confirming the related original balance (based on a comparison Outstanding Asset Balance, Asset number and Obligor name with respect to the note or assignment agreement, as applicable) such Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape related Asset List and is not a duplicate Asset (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Asset Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist Asset List or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan Asset identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.determine that
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. On or before the initial Funding Cut-Off Date, and until its removal pursuant to Section 7.5, the Collateral Agent shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loans” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents Underlying Instruments and the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document must contain a copy of a signature, that such copies appear to bear a reproduction of such signature, (B) such Required filed stamped copies of the UCC and other filings (identified on the Loan Documents have been executed by each party thereto Checklist) are included and have no missing or mutilated pages, (C) each item listed in based on a review of the applicable note, the related original Loan balance, Loan identification number and Obligor name with respect to such Loan is the same as the information referenced on the related Loan Checklist has been provided or electronic file delivered to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on is not a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the duplicate Loan Tape (such items (A) through (DC) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents Underlying Instruments hereunder to the Collateral Agent, the Collateral Manager shall provide to the Collateral Agent an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of ) or the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the original Loan balance with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent shall determine that (1) the original Loan balances of the Loans with respect to which it has received Underlying Instruments is unable to confirm less than as set forth on the electronic file, the Collateral Agent shall immediately notify the Administrative Agent, the Borrower and the Collateral Manager of such discrepancy, and (2) any Review CriteriaCriteria is not satisfied, the Collateral Agent shall within one (1) Business Day notify the Administrative Agent, the Collateral Manager and the Borrower of such determination and provide the Administrative Agent, the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty ten (2010) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Loan and each of the applicable Review Criteria that such Loan shall cease fails to be an Eligible Loan until such non-compliance is cured. satisfy In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents Underlying Instruments for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoingforegoing expressly set forth herein, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) The parties to this Agreement hereby agree that the sole purpose of the Collateral Agent’s review of certain Required Loan Documents pursuant to this Section 7.2(b) is to confirm receipt of thereof by confirming certain information contained in such documents as set forth therein. The Collateral Agent’s review of such documents shall not be deemed to constitute “due diligence services” or a “third party due diligence report” as such terms are defined in Rules 17g-10 and 15Ga-2, respectively, as promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended. Any recipient of any list of non-complying Loans and any exception report or a copy thereof by its receipt thereof is deemed to agree, and each party to this Agreement hereby agrees, that it shall not share such list of non-complying Loans or exception report, directly or indirectly, with any rating agency.
(iii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated set forth herein.
(iiiiv) All Required Loan Documents Underlying Instruments that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent Agent’s office set forth in Section 5.5(c)) hereof. All Required Loan Documents Underlying Instruments that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Underlying Instruments that are originals or copies shall be clearly segregated from any other documents or instruments maintained by the Collateral Agent. All Underlying Instruments that are delivered to the Collateral Agent in electronic format shall be saved onto disks and/or onto the Collateral Agent’s secure computer system, and maintained in a manner so as to permit retrieval and access.
(v) The Collateral Agent shall segregate make payments in accordance with the Required Loan Documents on its inventory system express direction set forth in Section 2.7 and will not commingle Section 2.8(a) and as otherwise expressly provided under this Agreement (the physical Required Loan Documents with any other files of the Collateral Agent“Payment Duties”).
(ivvi) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent Agent, the Borrower and the Collateral Manager (in a form mutually agreeable acceptable to the Administrative Collateral Agent and the Collateral Administrative Agent) identifying each Loan for which it holds Required Loan Documents Underlying Instruments, the non-complying Loans and any the applicable Review Criteria that each such any non-complying Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vivii) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report Borrowing Base Certificate from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management ReportBorrowing Base Certificate, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) Borrowing Base Certificate. The Collateral Agent shall also make payments required calculations based on information provided to it for each Payment Date Statement as of the day that is four (4) Business Days prior to the applicable Payment Date, and deliver such calculations to the Borrower and the Collateral Manager (and, following the delivery of a Notice of Exclusive Control, the Administrative Agent and the Collateral Manager) for the Collateral Manager’s (or Administrative Agent’s, as applicable) review no later than two (2) Business Days prior to such Payment Date. Upon the approval (which may be by email) by the Collateral Manager (or after delivery of a Notice of Exclusive Control, the Administrative Agent), the Payment Date Statement shall constitute instructions by the Collateral Manager (or after delivery of a Notice of Exclusive Control, the Administrative Agent) to the Collateral Agent to withdraw on the related Payment Date from the applicable Collection Account and pay or transfer amounts set forth in such report in the manner specified, and in accordance with the priorities established, in Section 2.7 and or Section 2.8 and 2.8(a), as otherwise expressly provided under this Agreement (the “Payment Duties”)applicable.
(viii) The Administrative Collateral Agent and each other Secured Party further authorizes shall create a collateral database with respect to the Collateral Agent (the “Collateral Database”), and update the Collateral Database daily for changes, including to take such action as agent on its behalf reflect the sale or other disposition of the Collateral, based upon, and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated extent of, information furnished to the Collateral Agent by the terms hereof Borrower and thereof, together with such powers the Collateral Manager as are may be reasonably incidental theretorequired by the Collateral Agent. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints The Collateral Manager shall supply in a timely fashion any information maintained by it that the Collateral Agent (acting at may from time to time reasonably request with respect to the direction of Collateral and reasonably needs to complete the Administrative Agent) as its agent reports required to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution be prepared by the Collateral Agent hereunder or reasonably required to permit the Collateral Agent to perform its obligations hereunder.
(ix) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and close of business on the preceding Business Day.
(x) The Collateral Agent shall provide such other instruments or notices, information with respect to the Collateral as may be necessary routinely maintained by the Collateral Agent or appropriate for as may be expressly required by this Agreement, in each case as the purposes stated hereinabove. Nothing Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time in this clause writing.
(xi) The Collateral Agent shall be deemed to relieve notify the Borrower or Borrower, the Collateral Manager of their respective obligations and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of corporate actions affecting the Collateral.
(ixxii) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agentdesired. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard use a similar degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the similar collateral that it holds as Collateral Agent for others and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including Advance Rate, EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Controlling Lender, Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvixiv) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 2 contracts
Sources: Loan and Security Agreement (Oaktree Specialty Lending Corp), Loan and Security Agreement (Oaktree Strategic Income II, Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Trustee shall perform, perform on behalf of the Administrative Agent and the Secured Parties, Parties the following duties and obligations:
(i) The Collateral Agent Trustee shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and Section 3.2 hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Trustee for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents, the Trustee shall review the related Required Loan Documents and (as identified on the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it ) to confirm that (A) the Obligor name matches the Loan Checklistthat, (B) such Required Loan Documents documents have been properly executed by each party thereto and have no missing or mutilated pages, (B) that, as identified on the Loan Checklist, there is evidence in the file that UCC and other filings (required by the Required Loan Documents) have been made, (C) each item that, if listed in on the Loan Checklist has been provided Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Collateral Agent without any missing pages or sections Related Property, and (D) the related original principal balance of the Loan as of the date of its inclusion in the Collateral (based on as reflected in the Note, or if a comparison Noteless Loan or Participation, in the related Transfer Documents), the Loan number and the Obligor name with respect to the note or assignment agreement, as applicable) such Loan is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape List and is not a duplicate Loan (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentTrustee, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentTrustee, the Collateral Manager Servicer shall provide to the Collateral Agent Trustee an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent Trustee shall determine that (1) the principal balances of the Loans (as of the date of their inclusion in the Collateral, and as reflected in the Note, or if a Noteless Loan or Participation, in the related Transfer Documents) for which it has received Required Loan Documents is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Trustee shall immediately notify the Administrative Agent and the Servicer of such discrepancy, and (2) any Review Criteria is not satisfied, the Trustee shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days Servicer agrees to correct any non-compliance with any Review Criteria. If If, however, within seven Business Days after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease Trustee’s notice to be an Eligible Loan until it respecting such non-compliance is cured. In additionthe Servicer has not remedied the defect in every material respect, if requested in writing in the form such Loan will be treated as a Warranty Loan for purposes of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying InstrumentsSection 2.15.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Trustee shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Agent Trustee makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral AgentTrustee’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Collateral Administrative Agent set forth and the Servicer by the Trustee in Section 5.5(c)a written notice delivered at least 45 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the All Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with shall be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentTrustee.
(iv) On each Reporting Date, the Collateral Agent Trustee shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents Documents, the non-complying Loans and any the applicable Review Criteria that each such any non-complying Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees Not later than 12:00 p.m. four Business Days following the related Determination Date, the Servicer shall provide to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent Backup Servicer and the Trustee via e-mail certain asset level information, which shall rely on include but not be limited to the following information: (A) for each Loan, the name and follow number of the instructions given related Obligor, the collection status, the loan status, the date of each Scheduled Payment, as applicable, and the Outstanding Loan Balance, (B) the Borrowing Base and (C) the Aggregate Outstanding Loan Balance and such other items as may reasonably be expected in connection with the transactions contemplated by the Administrative Agentthis Agreement.
(vi) The Promptly after receipt thereof, the Trustee shall provide to the Servicer a copy of all written notices and communications identified as being sent to it in connection with the Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report held hereunder which it receives from the Collateral Manager related Obligor, participating bank and/or agent bank. In no instance shall the Trustee be under any duty or obligation to take any action on behalf of the Servicer (or Borrower) in respect of the exercise of any voting or consent rights, calculate or similar actions, unless it receives specific written instructions from the Borrowing Base andServicer, if prior to the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each occurrence of a Termination Event or the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day after the occurrence of receipt by a Termination Event, in which event the Collateral Agent of Trustee shall vote, consent or take such Collateral Management Report and the parties shall reconcile other action in accordance with such discrepancyinstructions.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent Trustee shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information similar collateral that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts it holds as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral AgentTrustee for others.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (NewStar Financial, Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.512.05 or resignation pursuant to Section 12.07, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of UCC and other filings (required by the Required Loan Documents) have been included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E L) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated hereinherein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral Custodian.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Agent Custodian set forth in Section 5.5(c)11.02, or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided that the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent or the Borrower.
(iv) On each Reporting Datethe 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or the Administrative Agent (pursuant to a written request in the form of Exhibit L), as applicable, as requested in order for the Collateral Agent or the Administrative Agent to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, including any rights arising with respect to Article VII. In the execution by event the Collateral Agent as secured party/assignee of such financing Custodian receives instructions from the Servicer or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written which conflict with any instructions received from the Administrative Agent as to or the course of action desired Collateral Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent or the Collateral Agent. If , as applicable; provided that in the event any instructions given by the Administrative Agent and the Collateral Agent does not receive such instructions within two (2) Business Days after its request thereforconflict, the Collateral Agent may, but Custodian shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on and follow the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required instructions given by the Collateral Agent.
(xi) The ; provided further that the Collateral Agent Custodian shall track the receipt and daily allocation promptly provide notification to the Accounts of CollectionsServicer, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by Borrower and/or the Administrative Agent, as applicable, of such conflicting instructions; provided further that any such failure on the Borrower or part of the Collateral Manager Custodian to deliver such notice shall not render such action by the Collateral AgentCustodian invalid.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such action incidental action to its express duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs or the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all or the Collateral Agent’s rights, protections and immunities provided herein as applicable, within 10 Business Days of its receipt of such request, then the Administrative Agent or the Collateral Agent, as applicable, shall apply be deemed to have declined to consent to the relevant action.
(iii) The Collateral Agent Custodian shall not be liable for any actions taken action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be taken under deemed to have notice or knowledge of any matter hereunder, including an Event of Default or a Notice of Exclusive Control (as defined in the Sale Agreement and Control Agreement), unless a Responsible Officer of the Securities Account Control Agreement in Collateral Custodian has knowledge of such capacitymatter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loans” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistUnderlying Instruments, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document must contain a copy of a signature, that such copies appear to bear a reproduction of such signature and (B) based on a review of the applicable note, the related original Loan balance, Loan identification number and Obligor name with respect to such Required Loan Documents have been executed by each party thereto is referenced on the related Loan List and have no missing or mutilated pagesis not a duplicate Loan, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents Underlying Instruments hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Checklist Custodian) that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the original Loan balance with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (1) the original Loan balances of the Loans with respect to which it has received Underlying Instruments is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Custodian shall immediately notify the Administrative Agent and the Collateral Manager of such discrepancy, and (2) any Review Criteria is not satisfied, the Collateral Custodian shall within USActive 37382726.2937382726.32 108 one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, the Borrower and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Loan and each of the applicable Review Criteria that such Loan shall cease fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents Underlying Instruments for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Loan and Security Agreement (New Mountain Finance Corp)
Duties. On or before From the initial Funding Date, and Closing Date until its removal and/or replacement pursuant to Section 7.511.05 or Section 11.07, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan ChecklistAsset Schedule and a hard copy of the Loan Asset Checklist (provided, however, that if more than one hundred (100) Required Loan Documents are delivered at one time to the Collateral Custodian, the Collateral Agent Custodian shall have additional time as mutually agreed to by the Collateral Custodian, the Servicer and the Administrative Agent), the Collateral Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule, and whether there is any discrepancy between the original balance of such Loan Asset and the amount set forth on such Loan Asset Schedule (such items (A) through (D) collectively, the “"Review Criteria”"). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Agent’s Custodian's obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset Checklist and the Collateral Custodian shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the represented purpose, any assignment or endorsement is in proper form, or any USActive 55125247.5 166 document is other than what it purports to be on its face. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that any Review Criteria is unable to confirm the Review Criterianot satisfied, the Collateral Agent Custodian shall within one (1) Business Day notify the Collateral Manager Servicer and the Borrower Administrative Agent of such determination and provide the Collateral Manager Servicer and the Borrower Administrative Agent with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E J) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s Custodian's delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral Agent’s Custodian's duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Custodian located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other office as shall be specified to the Administrative Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each Reporting Datemonth, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent Agent, the Servicer and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other USActive 55125247.5 167 parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Duties. On or before From the initial Funding DateClosing Date until its resignation pursuant to Section 12.07, and until its removal pursuant to Section 7.512.05, or the payment in full of all Obligations and the termination of all Commitments hereunder, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the items in clause (a) of the definition of Required Loan Documents in original form and the Collateral Administrator shall take an retain custody of electronic copies of the items in the definition of Required Loan Documents, (including any copies of original items described in clause (a) of such definition) and the Loan Asset Checklist, in each case delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such items), the related Loan Tape and an electronic copy of the Loan Asset Checklist, the Collateral Agent Administrator shall review the items in the definition of Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklistthat, on their face, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Asset Checklist required to be delivered to the Collateral Administrator pursuant to this Agreement has been provided to the Collateral Agent without any missing pages or sections and Administrator (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentAdministrator, in connection with each delivery of applicable Required Loan Documents hereunder to the Collateral AgentAdministrator, the Collateral Manager Servicer shall provide to the Collateral Agent Administrator an electronic copy (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, Administrator) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the applicable Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentAdministrator’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset Checklist and the Collateral Administrator shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to be on its face. If, at the conclusion of such review, the Collateral Agent is unable to confirm Administrator shall determine that the Review CriteriaCriteria is not satisfied, the Collateral Agent Administrator shall within one (1) three Business Day Days notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer (which may be via email) with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan Asset shall cease be deemed to be an Eligible a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such non-compliance deficiency is cured. In addition, if requested in writing (in the form of Exhibit L) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Administrator’s notification to the Servicer of its review of the Review Criteria, the Collateral Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian and Collateral Administrator shall not have any responsibility for reviewing any Required Loan Documents.
(ii) In taking and retaining custody of the Required Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting as the agent of the Secured Parties; provided that neither the Collateral Custodian nor the Collateral Administrator makes any representations as to, and shall be AmericasActive:18709990.5 responsible for, the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that, the Collateral Custodian’s and the Collateral Administrator’s respective duties shall be limited to those expressly contemplated herein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral Custodian or the Collateral Administrator, as applicable.
(iii) All original promissory notes actually delivered to the Collateral Custodian shall be kept ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Level “C” – Securities Vault, New York, NY 10022, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, OSCF LENDING III SPV, LLC, telephone: (▇▇▇) ▇▇▇-▇▇▇▇, or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days prior to such change. All such documents delivered to the Collateral Custodian must be sent by trackable courier service (e.g., UPS or Federal Express) All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) (x) On the Reporting Date of each month and (y) upon demand of the Administrative Agent (provided that prior to the occurrence of an Event of Default (that has not been waived), the Administrative Agent shall not make such demand more than four times per calendar year), the Collateral Custodian and the Collateral Administrator shall identify each Loan Asset for which it holds any Required Loan Documents and the Collateral Administrator shall identify any applicable Review Criteria that any Loan Asset fails to satisfy, in accordance with Article XII.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, neither the Collateral Custodian nor the Collateral Administrator shall have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian or the Collateral Administrator. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that neither the Collateral Custodian nor the Collateral Administrator shall be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(vi) The Collateral Agent agrees Custodian and the Collateral Administrator agree to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents held by it to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit L), as applicable, as requested in order to take any action that allow the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvvii) The parties acknowledge and agree that the Collateral Custodian is not expecting to receive a significant number of original Required Loan Documents. In the AmericasActive:18709990.5 event the Collateral Custodian receives an amount in excess of its expectation, as determined in its sole discretion, the Collateral Custodian may either appoint a sub-agent custodian, or require the Borrower to enter into a document custody agreement in form and substance reasonably acceptable to the Borrower directly with a separate custodian, in respect of such original Required Loan Documents.
(viii) The Administrative Agent may direct the Collateral Agent Custodian and the Collateral Administrator to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian or the Collateral Administrator, as applicable, hereunder, neither the Collateral Agent Custodian nor the Collateral Administrator shall not be required to take any such incidental action action, hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that neither the Collateral Custodian nor the Collateral Administrator shall be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, or the Collateral Administrator, as applicable (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose such party to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian or the Collateral Administrator, as applicable, requests the consent of the Administrative Agent and the Collateral Custodian or the Collateral Administrator, as applicable does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(xviix) Nothing herein shall prevent Neither the Collateral Agent Custodian nor the Collateral Administrator shall be liable for any action taken, suffered or any of its Affiliates from engaging omitted by it in other businesses accordance with the request or from rendering services direction of any kind Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Collateral Administrator, as applicable, or the Administrative Agent. Neither the Collateral Custodian nor the Collateral Administrator shall be deemed to have notice or knowledge of any Personmatter hereunder, including an Event of Default, unless written notice thereof is received by it.
(xviix) Concurrently herewithWith respect to any notices, reports, requests for waiver, consent requests or any other requests relating to corporate actions affecting any Bonds and Equity Securities (together, the Administrative Agent directs “Permitted Non-Loan Corporate Actions”), the delivery of such shall be made solely via Citibank’s corporate action notification system or such other reasonable notification method as implemented by the Collateral Custodian with notification to the Servicer. In order to receive such Permitted Non-Loan Corporate Actions, the Servicer may be required to register for an account with Citibank’s corporate action notification system. Neither the Collateral Custodian nor the Collateral Administrator shall have any obligation or liability with respect to any Permitted Non-Loan Corporate Actions.
(xi) The Borrower acknowledges that in accordance with the Customer Identification Program (CIP) requirements under the USA PATRIOT Act and its implementing regulations, the Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may request including, but not limited to, its name, physical address, tax identification number and other information that will help the Collateral Custodian to identify and verify its identity such as organizational AmericasActive:18709990.5 documents, certificate of good standing, license to do business, or other pertinent identifying information.
(xii) In connection with each Payment Date, the Collateral Administrator shall calculate, using the information contained in the Collateral Database and any other information normally maintained by the Collateral Custodian, and subject to the Collateral Administrator’s receipt from the Servicer of the information required to be provided to the Collateral Administrator, each item required to be included the Servicing Report pursuant to Section 6.08(b)(ii) and shall prepare and arrange for the delivery of such information to be included in the Servicing Report and shall deliver a draft of such Payment Date Report not later than the day that is four (4) Business Days prior to the applicable Payment Date to the Borrower and the Servicer (and, following the delivery of a Notice of Exclusive Control, the Collateral Agent and the Servicer) for the Servicer’s (or Collateral Agent is authorized to enter into Agent’s, as applicable) review. The parties acknowledge and agree that the Sale Agreement Servicer shall provide, and the Securities Account Control AgreementCollateral Administrator shall have no duty or responsibility to determine, the underlying information (or perform the underlying calculations) provided to it. For the avoidance of doubt, all The parties further acknowledge that the Collateral Administrator shall not be responsible for determining the Interest with respect to any Advance, which shall be solely provided by the Administrative Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the The Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured PartiesAgent, the following duties and obligations:
(i) i. The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the each Borrower pursuant to and Section 5.01(f) in accordance with the terms and conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Within five ten (510) Business Days of its receipt of any the Required Loan Documents for any Portfolio Asset, the Loan Asset Schedule and the related Loan Asset Checklist, the Collateral Agent Custodian shall review the such Required Loan Documents delivered to it to confirm that (A) all Required Loan Documents for such Loan Asset File have been executed (either an original or a copy, as indicated on the Obligor name matches the related Loan Asset Checklist) and have no mutilated pages, (B) such Required filed stamped copies of the UCC and other filings identified on the related Loan Documents have been executed by each party thereto and have no missing or mutilated pagesAsset Checklist are included, (C) each item if listed in on the related Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections for such Portfolio Asset is included and (D) the related original balance (based on a comparison to the note or assignment agreementstated balance, Portfolio Asset number and Obligor name, as applicable) , with respect to such Portfolio Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape Asset Schedule (such items in clauses (A) through (D) above, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Portfolio Asset Servicer shall provide to the Collateral Agent Custodian a hard copy or an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Asset Checklist that which contains a list of all related the Portfolio Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents for any Loan Asset shall be limited to reviewing such Required Loan Documents based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (1) the stated balance of the Loan Asset with respect to which it has received the Required Loan Documents is unable to confirm as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent, the Calculation Agent and the Portfolio Asset Servicer of such discrepancy within one Business Day or (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Portfolio Asset Servicer, the Calculation Agent and the Borrower Administrative Agent of such determination and provide the Collateral Manager and the Borrower Portfolio Asset Servicer with a list of the non-complying Loans Portfolio Assets and the applicable Review Criteria that they fail to satisfy, which the Portfolio Asset Servicer shall promptly provide to the Borrower upon receipt of such. The Collateral Manager Borrower shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E E) by the Collateral Manager Portfolio Asset Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the any Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsLoan Asset File.
(ii) In ▇▇. ▇▇ taking and retaining custody of the Underlying InstrumentsRequired Loan Documents and any other Loan Asset Files, the Collateral Agent Custodian shall be deemed to be acting as the agent of and on behalf of the Secured Parties; provided that (A) the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Loan Asset Files or the instruments therein; therein and provided further that (B) the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.. NAI-15121569431515895953v1213 -102-
(iii) . All Required Loan Documents that are originals and any other Loan Asset Files delivered to the Collateral Custodian shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Custodian in Schedule III hereto, or at such other office as shall be specified to the Administrative Agent set forth and the Portfolio Asset Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least 30 days prior to such change. All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian on its inventory system and will not commingle the physical Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian with any other files of the Collateral Custodian; provided the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent.
iv. On the 12th calendar day of every month (iv) On each Reporting Dateor if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent Agent, the Borrower and the Collateral Manager Calculation Agent (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required a Loan Documents Asset File and any the applicable Review Criteria that each such any Loan Asset File fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver v. Notwithstanding any Required Loan Documents provision to the Administrative Agent as requested contrary elsewhere in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative AgentTransaction Documents, the Collateral Agent Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond have any fiduciary relationship with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other any party hereto or any Secured Party further authorizes the Collateral Agent to take such action in its capacity as agent on its behalf such, and to exercise such powers under no implied covenants, functions, obligations or responsibilities shall be read into this Agreement and Agreement, the other Transaction Documents as are expressly delegated to or otherwise exist against the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoCustodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the other parties hereto that the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent Custodian shall not be required to take exercise any such incidental action hereunder, but shall be required to act or to refrain from acting (discretion hereunder and shall be fully protected in acting have no investment or refraining from acting) upon the direction of the Administrative Agentmanagement responsibility.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Duties. On or before the initial Funding Date, and until Until its removal pursuant to Section 7.511.05, the Collateral Agent Trustee or the Custodian, as applicable, shall perform, perform on behalf of the Administrative Agent and the Secured Parties, Parties the following duties and obligations:
(i) The Collateral Agent Custodian hereunder, shall take and retain custody of the Required Loan Related Documents delivered by the Borrower pursuant to Sections 3.01 and 3.02 hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt (excluding, for the avoidance of doubt, any Related Documents in the custody of the Trustee or Custodian as of the Closing Date) of any Required Loan Documents and the related Loan ChecklistRelated Documents, the Collateral Agent Custodian shall review the Required specified Related Documents (as identified on the related Collateral Loan Documents delivered to it Checklist) to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents documents have been properly executed by each party thereto and have no missing or mutilated pages, (B) as identified on the Collateral Loan Checklist, there is evidence in the file that UCC and other filings (required by the Related Documents) have been made, (C) each item if listed in the Loan Checklist has been provided to on the Collateral Agent without Loan Checklist, an Insurance Policy exists with respect to any missing pages real or sections personal property constituting the Related Property, and (D) the related original principal balance (based on a comparison of such Collateral Loan, loan number and Obligor name with respect to the note or assignment agreement, as applicable) such Collateral Loan is greater than or equal to the applicable loan balance listed referenced on the related electronic file delivered with such loan documents as specified below and, on its face, is not a duplicate Collateral Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentTrustee, in connection with each delivery of Required Loan Related Documents hereunder to the Collateral AgentTrustee or Custodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to format) that contains the related Collateral Loan Checklist or that otherwise contains the Collateral Agent, as applicable, of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signaturesidentification number, the original principal balance of such Collateral Loan identification number and the name of the Obligor with respect to each related Collateral Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Custodian shall determine that (i) the original principal balance of each Collateral Agent Loan for which it has received Related Documents is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Custodian shall promptly notify the Administrative Agent and the Collateral Agent Servicer of such discrepancy, and (ii) any Review Criteria are not satisfied, the Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Collateral Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form Collateral Servicer does not cure any such non-compliance, it shall provide a written request to the Custodian (such request subject to the approval of Exhibit E the Administrative Agent) for the return by the Custodian to the Borrower of any Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the BorrowerCriteria. Other than the foregoing, neither the Collateral Agent Trustee nor the Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRelated Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRelated Documents, the Collateral Agent Trustee or Custodian, as applicable, shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Agent Trustee makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Related Documents or the instruments therein; and provided further that the Collateral AgentTrustee’s and Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Related Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule 10 attached hereto, or at such other office as shall be specified to the Administrative Agent and the Collateral Agent set forth Servicer by the Trustee or Custodian in Section 5.5(c)a written notice delivered at least 45 days prior to such change. All Required Loan Related Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent All Related Documents shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentTrustee and Custodian.
(iv) On each Reporting Monthly Report Date, the Collateral Agent Trustee shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Collateral Loan for which it (or the Custodian) holds Required Loan Documents Related Documents, the non-complying Collateral Loans and any the applicable Review Criteria that each such any non-complying Collateral Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Prior to acquiring a Collateral Agent agrees to cooperate Loan, the Borrower or the Collateral Servicer will provide the Trustee and Custodian with a Trade Ticket, together with the Administrative Agent and deliver any Required Loan Documents Notice of Borrowing to the Administrative Agent as requested be used in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agentconnection therewith.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy[Reserved].
(vii) The Promptly after receipt thereof, the Trustee shall provide to the Collateral Servicer a copy of all written notices and written communications identified as being sent to it in connection with the Collateral held hereunder which it receives from the related Obligor or any other Person. In no instance shall the Trustee be under any duty or obligation to take any action on behalf of the Collateral Servicer (or Borrower) in respect of the exercise of any voting or consent rights, or similar actions, unless it timely receives specific written instructions from the Collateral Servicer (prior to the occurrence of an Event of Default) or the Administrative Agent (after the occurrence of an Event of Default) in which event the Trustee shall make payments vote, consent or take such other action in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”)such instructions.
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent Trustee and Custodian, as applicable, shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information similar collateral that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts it holds as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral AgentTrustee for others.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (NewStar Financial, Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.512.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Tape and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that that, on their face, (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item listed in the Loan Asset Checklist is included and verify it has been provided to the Collateral Agent Custodian without any missing pages or sections sections, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset Checklist and the Collateral Custodian shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to be on its face. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Tape or the Obligor name does not match, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan Asset shall cease be deemed to be an Eligible a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such non-compliance deficiency is cured. In addition, if requested in writing (in the form of Exhibit L) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral Custodian.
(iii) All original promissory notes actually delivered to the Collateral Custodian shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on the address of the Collateral Custodian located at ▇▇▇▇ ▇▇▇▇ ▇▇▇, Florence, SC 29501, or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) (x) Upon receipt of a Loan Asset for which it holds Required Loan Documents and (y) upon demand of the Administrative Agent (provided that prior to the occurrence of an Event of Default (that has not been waived), the Administrative Agent shall not make such demand more than four times per calendar year), the Collateral Custodian shall identify each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(vi) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit L), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(viii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless written notice thereof is received by the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacityCustodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Onex Direct Lending BDC Fund)
Duties. On or before From the initial Funding DateClosing Date until its resignation pursuant to Section 12.07, and until its removal pursuant to Section 7.512.05, or the payment in full of all Obligations and the termination of all Commitments hereunder, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the items in clause (a) of the definition of Required Loan Documents in original form and the Collateral Administrator shall take and retain custody of electronic copies of the items in the definition of Required Loan Documents, (including any copies of original items described in clause (a) of such definition) and the Loan Asset Checklist, in each case delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such items), the related Loan Tape and an electronic copy of the Loan Asset Checklist, the Collateral Agent Administrator shall review the items in the definition of Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklistthat, on their face, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Asset Checklist required to be delivered to the Collateral Administrator pursuant to this Agreement has been provided to the Collateral Agent without any missing pages or sections and Administrator (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentAdministrator, in connection with each delivery of applicable Required Loan Documents hereunder to the Collateral AgentAdministrator, the Collateral Manager Servicer shall provide to the Collateral Agent Administrator an electronic copy (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, Administrator) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the applicable Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentAdministrator’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset Checklist and the Collateral Administrator shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to be on its face. If, at the conclusion of such review, the Collateral Agent is unable to confirm Administrator shall determine that the Review CriteriaCriteria is not satisfied, the Collateral Agent Administrator shall within one (1) three Business Day Days notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer (which may be via email) with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E L) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentAdministrator’s delivery notification to the Servicer of such reportits review of the Review Criteria, the Collateral Agent Administrator shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian and Collateral Administrator shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting as the agent of the Secured Parties; provided that neither the Collateral Agent Custodian nor the Collateral Administrator makes no any representations as to to, and shall be responsible for, the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that provided, further, that, the Collateral AgentCustodian’s and the Collateral Administrator’s respective duties as agent shall be limited to those expressly contemplated hereinherein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral Custodian or the Collateral Administrator, as applicable.
(iii) All Required Loan Documents that are originals original promissory notes actually delivered to the Collateral Custodian shall be kept in fire resistant vaultsat ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, rooms ▇▇. ▇▇▇▇, Minnesota 55108, Attention: CLO Trust Services—OSCF LENDING V SPV, LLC, or cabinets at such other office as shall be specified to the offices of Administrative Agent and the Servicer by the Collateral Agent set forth Custodian in Section 5.5(c)a written notice delivered at least 30 days (or such shorter notice period as consented to by the Administrative Agent) prior to such change. All such documents delivered to the Collateral Custodian must be sent by trackable courier service (e.g., UPS or Federal Express) All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) (x) On the Reporting Date of each Reporting Datemonth and (y) upon demand of the Administrative Agent (provided that prior to the occurrence and continuance of an Event of Default (that has not been waived), the Administrative Agent shall not make such demand more than four times per calendar year), the Collateral Agent shall provide a written report to the Administrative Agent Custodian and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying Administrator shall identify each Loan Asset for which it holds any Required Loan Documents and the Collateral Administrator shall identify any applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance , in accordance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is curedArticle XII.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, neither the Collateral Custodian nor the Collateral Administrator shall have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian or the Collateral Administrator. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that neither the Collateral Custodian nor the Collateral Administrator shall be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(vi) The Collateral Agent agrees Custodian and the Collateral Administrator agree to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents held by it to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit L), as applicable, as requested in order to take any action that allow the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent (provided that the Collateral Manager Custodian shall provide notice of any such conflicting instructions to each of the Collateral AgentBorrower and the Servicer).
(xvvii) The parties acknowledge and agree that the Collateral Custodian is not expecting to receive a significant number of original Required Loan Documents. In the event the Collateral Custodian receives an amount in excess of its reasonable expectation, as determined in its sole discretion, the Collateral Custodian may either appoint a sub-agent custodian, or require the Borrower to enter into a document custody agreement in form and substance reasonably acceptable to the Borrower directly with a separate custodian, in respect of such original Required Loan Documents.
(viii) The Administrative Agent may direct the Collateral Agent Custodian and the Collateral Administrator to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian or the Collateral Administrator, as applicable, hereunder, neither the Collateral Agent Custodian nor the Collateral Administrator shall not be required to take any such incidental action action, hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that neither the Collateral Custodian nor the Collateral Administrator shall be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, or the Collateral Administrator, as applicable (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose such party to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian or the Collateral Administrator, as applicable, requests the consent of the Administrative Agent and the Collateral Custodian or the Collateral Administrator, as applicable does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(xviix) Nothing herein shall prevent Neither the Collateral Agent Custodian nor the Collateral Administrator shall be liable for any action taken, suffered or any of its Affiliates from engaging omitted by it in other businesses accordance with the request or from rendering services direction of any kind Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Collateral Administrator, as applicable, or the Administrative Agent. Neither the Collateral Custodian nor the Collateral Administrator shall be deemed to have actual or constructive knowledge or notice of any Personmatter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Custodian or Collateral Administrator receives written notice thereof.
(xviix) Concurrently herewith[Reserved].
(xi) The Borrower acknowledges that in accordance with the Customer Identification Program (CIP) requirements under the USA PATRIOT Act and its implementing regulations, the Administrative Agent directs Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such information as it may reasonably request including, but not limited to, its name, physical address, tax identification number and other information that will help the Collateral Custodian to identify and verify its identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
(xii) In connection with each Payment Date, the Collateral Administrator shall calculate, using the information contained in the Collateral Database and any other information normally maintained by the Collateral Custodian, and subject to the Collateral Administrator’s receipt from the Servicer of the information required to be provided to the Collateral Administrator, each item required to be included the Servicing Report pursuant to Section 6.08(b)(ii) and shall prepare and arrange for the delivery of such information to be included in the Servicing Report and shall deliver a draft of such Payment Date Report not later than the day that is four (4) Business Days prior to the applicable Payment Date to the Borrower and the Servicer (and, following the delivery of a Notice of Exclusive Control, the Collateral Agent and the Servicer) for the Servicer’s (or Collateral Agent is authorized to enter into Agent’s, as applicable) review. The parties acknowledge and agree that the Sale Agreement Servicer shall provide, and the Securities Account Control AgreementCollateral Administrator shall have no duty or responsibility to determine, the underlying information (or perform the underlying calculations) provided to it. For the avoidance of doubt, all The parties further acknowledge that the Collateral Administrator shall not be responsible for determining the Interest with respect to any Advance, which shall be solely provided by the Administrative Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. On or before the initial Funding Date, and until Until its removal pursuant to Section 7.513.4, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered to it by the Borrower pursuant to and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required purported Loan Documents, the Loan Checklist and an updated Loan List (the “Review Period”), or, if more than fifty (50) Loan Documents are delivered on any particular Business Day, such greater time period that is mutually acceptable to the Borrower, the Administrative Agent and the related Loan ChecklistCollateral Custodian (which acceptance may be conclusively confirmed by e-mail), the Collateral Agent Custodian shall review the purported Required Loan Documents delivered to it to confirm that (A) the Obligor name matches if the Loan ChecklistChecklist indicates that any document must contain an original signature, each such document appears to bear the original signature, or if the Loan Checklist indicates that such document may contain a copy of a signature, that such document appears on its face to bear a reproduction of such signature and (B) based on a review of the applicable note (or the applicable Contract, in the case of an Equipment Finance Loan), the related initial Loan balance, Loan identification number and Obligor name with respect to such Loan is referenced on the related Loan Checklist and the Loan to which such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the relate is not a duplicate Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent an electronic copy Custodian the updated Loan List (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of Custodian) and the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within Within one (1) Business Day notify after the end of the Review Period, the Collateral Manager Custodian shall deliver to the Borrower, the Servicer, and the Borrower Administrative Agent a certificate substantially in the form of such determination and provide Exhibit I attached hereto (the “Custodial Certificate”), which shall indicate whether any Required Loan Documents listed on the Loan Checklist are not included in the Required Loan Documents so delivered to the Collateral Manager Custodian and include a report of exceptions to the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy(each, an “Exception Report”). The Collateral Manager Servicer shall have twenty (20) Business Days days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria; provided, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until however that if such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria pertains to the Borrower. Other than the foregoingreceipt of original recorded documents from a filing office, the Collateral Agent such period shall not have any responsibility for reviewing any Underlying Instrumentsbe one hundred twenty (120) days.
(ii) In taking and retaining custody of the Underlying InstrumentsLoan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals or copies of Contracts (in the case of Equipment Finance Loans), promissory notes, stock powers, or allonges (other than documents delivered in Electronic Form) shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c)Custody Facilities. All Required Loan Documents that are originals or copies shall be placed together with an appropriate identifying label (other than documents in Electronic Form) and maintained in such a manner so as to permit identification, retrieval and access. The Collateral Agent Custodian shall segregate keep the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with clearly segregated from any other files of the Collateral Agentdocuments or instruments in its files.
(iv) [Reserved].
(v) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer a written report (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) ), identifying each Loan for which it holds Required Loan Documents Documents, and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative AgentException Report.
(vi) The Collateral Agent shall, promptly upon its actual receipt Custodian was not engaged to perform any of a Collateral Management Report from the services in this Agreement for the purpose of making findings with respect to the accuracy of the information or data regarding the Loan Documents provided to the Collateral Manager on behalf Custodian hereunder as contemplated by Rule 17g-10 under the Securities Exchange Act of 1934, as amended. Given the purpose and scope of the BorrowerCollateral Custodian’s services under this Agreement, calculate the Borrowing Base and, if parties hereto agree that the Collateral AgentCustodian’s calculation does services are not correspond with commonly understood in the calculation provided by market to be “due diligence services” for purposes of Rule 17g-10. The parties hereto do not consider the Collateral Manager on such Collateral Management Report, deliver such calculation Custodian’s services to each be “due diligence services” for purposes of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by Rule 17g-10. The parties hereto hereby acknowledges that the Collateral Agent Custodian is relying on this certification for purposes of such Collateral Management Report and the parties shall reconcile such discrepancydetermining that its services do not constitute “due diligence services” under Rule 17g-10.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but Custodian shall be under no responsibility or duty to, take or refrain from taking with respect to the disposition of any Loan Documents while such courses Loan Documents are not in its possession in accordance with the terms of actionthis Agreement. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent Custodian shall be entitled to rely on the advice retain copies of legal counsel and independent accountants obtained in good faith in performing any Loan Documents for so long as required by its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) internal document retention policy. The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent Custodian shall not be required responsible to take verify the authenticity of any signature (whether original or facsimile) on any of the documents received or examined by it or the authority or capacity of any Person to execute or issue any such incidental action hereunder, but document. The Collateral Custodian’s services hereunder shall be required to act conducted through the Document Custody division of Computershare (including, as applicable, any agents or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agentaffiliates utilized thereby).
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Credit Agreement (Ept 16 LLC)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.512.05 or resignation pursuant to Section 12.07, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the items in clause (a) of the definition of Required Loan Documents in original form and the Collateral Custodian shall take an retain custody of electronic copies of the items in the definition of Required Loan Documents (including any copies of original items described in clause (a) of such definition) and the Loan Asset Checklist, in each case, delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all and in each case for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such items), and an electronic copy of the related Loan Asset Checklist, the Collateral Agent Custodian shall review the items in the definition of Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklistthat, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pageson their face, (C) each item listed in the Loan Asset Checklist required to be delivered to the Collateral Custodian pursuant to this Agreement has been provided to the Collateral Agent without any missing pages or sections and Custodian (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of applicable Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, Custodian) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the applicable Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset Checklist and the Collateral Custodian shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to be on its face. If, at the conclusion of such review, the Collateral Agent is unable to confirm Custodian shall determine that the Review CriteriaCriteria is not satisfied, the Collateral Agent Custodian shall within one (1) three Business Day Days notify the Collateral Manager and the Borrower Servicer (which may be via email) of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan Asset shall cease be deemed to be an Eligible a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such non-compliance deficiency is cured. In addition, if requested in writing (in the form of Exhibit L) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Administrator’s notification to the Servicer of its review of the Review Criteria, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents.
(vii) In taking and retaining custody of the Required Loan Documents, the Collateral Custodian, shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Custodian makes no representations as to, and shall not be responsible for, the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that, the Collateral Custodian’s respective duties shall be limited to those expressly contemplated herein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral Custodian.
(iii) All Required Loan Documents delivered to the Collateral Custodian in physical form shall be kept at The Collateral Agent agrees Depository Trust Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ – ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: BNY Mellon/Branch Deposit Department, or at such other office as shall be specified to cooperate with the Administrative Agent and deliver any the Servicer by the Collateral Custodian. All such documents delivered to the Collateral Custodian must be sent by trackable courier service (e.g. UPS or Federal Express) at the expense of the Borrower. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Custodian shall segregate the Administrative Agent as requested in order to take any action that Required Loan Documents on its inventory system and will not commingle the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict physical Required Loan Documents with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest files of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the CollateralCustodian.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (CIFC Direct Lending Evergreen Fund)
Duties. On or before From the initial Funding Date, and Closing Date until its removal or replacement pursuant to Section 7.511.05 or Section 11.07, as applicable, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and (the “Review Period”), the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent is unable Custodian shall determine that (I) the original balance of the Loan Asset with respect to confirm which it has received Required Loan Documents does not match the Review Criteriabalance set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Administrative Agent and the Borrower Servicer of such determination and provide deliver to the Collateral Manager Administrative Agent and the Borrower with Servicer a certification substantially in the form attached hereto as Exhibit P that includes a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E J) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Custodian located at 1▇▇▇ ▇▇▇▇ ▇▇▇, Florence, South Carolina, 29501, or at such other office as shall be specified to the Administrative Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each Reporting Datemonth, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility. The Collateral Agent Custodian shall not be deemed to assume any obligations or liabilities of the Borrower or Servicer hereunder or under any other Transaction Document.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Franklin BSP Capital Corp)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the The Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured PartiesAgent, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Loan Asset Files and the Required Loan Documents delivered by the Borrower or the Portfolio Asset Servicer pursuant to and in accordance with the terms and conditions of this AgreementSection 5.01(f), all for the benefit of the Administrative Agent on behalf of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and (if the related Collateral Custodian receives no more than 10 Loan ChecklistAsset Files during such five Business Day period) or within a reasonable timeframe as mutually agreed upon (if the Collateral Custodian receives more than 10 Loan Asset Files during such five Business Day period), the Collateral Agent Custodian shall review the such Required Loan Documents delivered to it to confirm that (A) the principal amount and the Obligor name on the applicable Loan Agreement and any related promissory note matches that on the Loan ChecklistAsset Schedule and the Loan Asset number on the applicable Loan Agreement matches that on the Loan Asset Schedule, as applicable, (B) such Required Loan Documents Documents, have been executed by each party thereto (either an original or a copy, as indicated on the related Loan Asset Checklist), appear to relate to such Loan Asset and have no missing or mutilated pages, (C) each item listed in filed copies of the UCC financing statements and other filings identified on the related Loan Asset Checklist has been provided to the Collateral Agent without any missing pages or sections are included and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance if listed on the related Loan Tape Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Loan Asset is included (such the items (A) through (D) to be reviewed pursuant to this sentence, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required a Loan Documents Asset File hereunder to the Collateral AgentCustodian, the Collateral Manager Portfolio Asset Servicer shall provide (or cause the Underlying Servicers to provide) to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL and separately uploaded by the Borrower or a comparable format acceptable the Underlying Servicers or their respective designee to the Collateral Agentdesignated ▇▇▇▇▇▇▇.▇▇▇; provided that each .pdf document will be identified with the loan number in the format “LoanNumber.DocumentName.pdf” (example, as applicable, 12345.mortgage.pdf)) of the related Loan Asset Checklist that which contains a list of all related Required Loan Documents and whether they require original signatures, the Loan Asset information with respect to the Loan Asset File being delivered, identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents Asset File shall be limited to reviewing such Required Loan Documents the Review Criteria and based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent is unable Custodian shall determine that (1) the principal balance of the Loan Asset with respect to confirm which it has received the Review CriteriaLoan Asset File does not match the principal balance set forth on the Loan Asset Schedule, the Collateral Agent Custodian shall notify the Administrative Agent, Initial Lender and the Facility Servicer of such discrepancy within one Business Day or (2) any other Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Borrower, Administrative Agent, Initial Lender and the Borrower Facility Servicer of such determination and provide the Collateral Manager Borrower and the Borrower Facility Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Borrower shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time periodIn addition, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as if requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or writing by the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments or Portfolio Asset Servicer in accordance with Section 2.7 9.08 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent approved by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Administrative Agent (acting at the direction of the Administrative AgentMajority Lenders) as its agent to execute and deliver all further instruments and documents, and take all further action that within ten Business Days of the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any Collateral Custodian’s delivery of them to exercise or enforce any of their respective rights hereunder, including, without limitationsuch report, the execution by Collateral Custodian shall return any Loan Asset File which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or Custodian shall not have any responsibility for reviewing any Loan Asset File.
(ii) In taking and retaining custody of the Loans now existing or hereafter arisingLoan Asset Files, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause Collateral Custodian shall be deemed to relieve be acting as the Borrower or the Collateral Manager of their respective obligations to protect the interest agent of the Collateral Administrative Agent (for the benefit on behalf of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, ; provided that (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect Custodian makes no representations as to the Collateral existence, perfection or priority of any Lien on the Loan Asset Files or the instruments therein and (B) all calculations made the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) All Loan Asset Files shall be continually stored in fire resistant vaults, rooms or cabinets at the locations specified as the address of the Collateral Custodian in Section 11.02, or at such other office as shall be specified to the Administrative Agent, the Facility Servicer and the Borrower by the Collateral Agent pursuant Custodian in a written notice delivered at least 30 days prior to this Section 7.2(bsuch change. The Collateral Custodian shall segregate the Loan Asset Files on its inventory system.
(iv) using information that is not routinely maintained by On each Reporting Date following the first delivery of Required Loan Documents to the Collateral AgentCustodian, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor the Collateral Custodian shall be made using such amounts as provided by provide a written report to the Administrative Agent, the Borrower or and the Facility Servicer (in a form mutually agreeable to the Administrative Agent (at the direction of the Initial Lender), the Borrower and the Collateral Manager Custodian) identifying each Loan Asset for which it holds a Loan Asset File and the applicable Review Criteria that any Loan Asset File fails to the Collateral Agentsatisfy. The Borrower shall have ten Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria.
(xvv) The Administrative Agent Collateral Custodian has no duties or obligations other than those specifically set forth herein or as may direct subsequently be agreed to in writing by the Collateral Agent to take parties hereto.
(vi) Notwithstanding any such incidental action hereunder. With respect to other actions which are incidental provision to the actions specifically delegated to contrary elsewhere in the Collateral Agent hereunderTransaction Documents, the Collateral Agent Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any such incidental action hereunder, but shall be required to act or to refrain from acting (discretion hereunder and shall be fully protected in acting have no investment or refraining from acting) upon the direction of the Administrative Agentmanagement responsibility.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (FS Credit Real Estate Income Trust, Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal or replacement pursuant to Section 7.511.05 or Section 11.07, as applicable, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and an electronic copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) copies of such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents and identified on the Loan Asset Checklist) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent is unable Custodian shall determine that (I) the original balance of the Loan Asset with respect to confirm which it has received Required Loan Documents does not match the Review Criteriabalance set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Administrative Agent and the Borrower Servicer of such determination and provide deliver to the Collateral Manager Administrative Agent and the Borrower with Servicer a certification substantially in the form attached hereto as Exhibit P that includes a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To In addition, if requested in writing (in the extent form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such non-compliance has report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not been cured within have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) The Borrower shall deliver Required Loan Documents to the Collateral Custodian in an electronic form by posting such time perioddocuments to the Servicer’s data room. In taking and retaining custody of the Required Loan Documents, such Loan the Collateral Custodian shall cease be deemed to be an Eligible acting as the agent of the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Loan until such non-compliance is curedDocuments or the instruments therein; and provided further that the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) [Reserved].
(iv) On the Reporting Date of each month, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver Notwithstanding any Required Loan Documents provision to the Administrative Agent as requested contrary elsewhere in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative AgentTransaction Documents, the Collateral Agent Custodian shall rely on not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and follow no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from other Transaction Documents or otherwise exist against the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoCustodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the other parties hereto that the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent Custodian shall not be required to take exercise any such incidental action hereunder, but shall be required to act or to refrain from acting (discretion hereunder and shall have no investment or management responsibility. The Collateral Custodian shall not be fully protected in acting deemed to assume any obligations or refraining from acting) upon the direction liabilities of the Administrative AgentBorrower or Servicer hereunder or under any other Transaction Document.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Antares Private Credit Fund)
Duties. On or before the initial Funding Effective Date, and until its removal pursuant to Section 7.514.5, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the other Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Related Documents delivered by the Borrower pursuant to and Section 7.05 in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan the Related Documents and the related Loan Checklist, the Collateral Agent Custodian shall review the Required Loan Related Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear a reproduction of such signature and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable note, the related initial principal loan balance listed when entered into or obtained by the Borrower, loan identification number and Obligor name with respect to such Collateral Loan is referenced on the related Loan Tape Checklist and is does not appear to be a duplicate Collateral Loan (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Related Documents hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of Custodian) or the related Loan Checklist that contains a list of all related Required Loan Related Documents and whether they require original signatures, the Loan loan identification number and the name of the Obligor and the initial principal loan balance when entered into or obtained by the Borrower with respect to each related Collateral Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Custodian shall determine that (1) the initial principal loan balances of the Collateral Agent Loans with respect to which it has received Related Documents is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Custodian shall promptly notify the Administrative Agent, the Borrower and the Collateral Agent Manager of such discrepancy, and (2) any Review Criteria is not satisfied, the Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying non‑complying Collateral Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty ten (2010) Business Days to correct any non-compliance non‑compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E G by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Related Documents for any Collateral Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRelated Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRelated Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Related Documents or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Related Documents that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c)Document Custodian Facilities. All Required Loan Related Documents that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.All
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
Duties. On or before From the initial Funding Date, and Effective Date until its removal pursuant to Section 7.514.5, the Collateral Agent Document Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Document Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loans” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistChecklist (the “Review Period”), the Collateral Agent Document Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear an original or a reproduction of such signature and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable loan note, the related initial Loan balance listed when entered into or obtained by the Borrower, Loan identification number and Obligor name with respect to such Loan is referenced on the related Collateral Report and is not a duplicate Loan Tape (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentDocument Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentDocument Custodian, the Collateral Manager shall provide to the Collateral Agent Document Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral AgentDocument Custodian) listing [Investcorp] Loan and Security Agreement Loan Identification Number, as applicableName of Obligor, of and initial Loan balance and the related Loan Checklist per file that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance when entered into or obtained by the Borrower with respect to each related Loan. Notwithstanding anything herein to After the contraryReview Period, the Collateral Agent’s obligation Document Custodian shall execute and deliver to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be a certification (a “Document Custodian Certificate”) substantially in the form attached hereto as Exhibit K, including an Eligible Loan until such non-compliance is curedattached exception report (an “Exception Report”). In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentDocument Custodian’s delivery of such report, the Collateral Agent Document Custodian shall return the Required Loan Documents Underlying Instruments for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Document Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything herein to the contrary, the Document Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Document Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Document Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral AgentDocument Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Document Custodian located at ▇▇▇▇ ▇▇▇▇ ▇▇▇, Florence, SC 129501, or at such other office as shall be specified to the Administrative Agent and the Collateral Agent set forth Manager by the Document Custodian in Section 5.5(c)a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Document Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentDocument Custodian.
(iv) On each Reporting Date, the Collateral Agent Document Custodian shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be including an Eligible Loan until such non-compliance is curedException Report.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver Notwithstanding any Required Loan Documents provision to the Administrative Agent as requested contrary elsewhere in order to take the Transaction Documents, the Document Custodian shall not have any action that the Administrative Agent deems necessary fiduciary relationship with any party hereto or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager in its capacity as such, and no implied covenants, functions, obligations or the Borrower which conflict with any instructions received by the Administrative Agentresponsibilities shall be read into this Agreement, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to or otherwise exist against the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoDocument Custodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action other parties hereto that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them Document Custodian shall not be required to exercise any discretion hereunder and shall have no investment or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabovemanagement responsibility. Nothing in this clause The Document Custodian shall not be deemed to relieve assume any obligations or liabilities of the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing hereunder or under any other Transaction Document. [Investcorp] Loan and continuation statements in respect of the Collateral.Security Agreement
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xvvi) The Administrative Agent may direct the Collateral Agent Document Custodian to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Document Custodian hereunder, the Collateral Agent Document Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that, the Document Custodian shall not be required to take any action hereunder at the request of the Administrative Agent or otherwise if the taking of such action, in the reasonable determination of the Document Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Document Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Document Custodian requests the consent of the Administrative Agent and the Document Custodian does not receive a consent (either positive or negative) from the Administrative Agent within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(xvivii) Nothing herein The Document Custodian shall prevent not be liable for any action taken, suffered or omitted by it in accordance with the Collateral Agent request or any of its Affiliates from engaging in other businesses or from rendering services direction of any kind to any Person.
(xvii) Concurrently herewithSecured Party, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for extent that this Agreement provides such Secured Party the right to so direct the Document Custodian. The Document Custodian shall not be deemed to have notice or knowledge of any actions taken matter hereunder, including an Event of Default, unless a Responsible Officer of the Document Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityDocument Custodian.
Appears in 1 contract
Sources: Loan, Security and Collateral Management Agreement (Investcorp US Private Credit BDC II)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Custodian shall perform, perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Asset Documents delivered by the Borrower Seller pursuant to and Section 3.2 in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistAsset Documents, the Collateral Agent Custodian shall review the related Collateral and Required Loan Asset Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have Collateral has been properly executed by each party thereto and have has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) each item listed in an Insurance Policy exists with respect to any real or personal property constituting the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Related Property, and (D) confirming the related original balance (based on a comparison Outstanding Asset Balance, Asset number and Obligor name with respect to the note or assignment agreement, as applicable) such Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape related Asset List and is not a duplicate Asset (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Asset Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist Asset List or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan Asset identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days to correct any non-compliance with any a Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by an Asset with a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, Borrower Seller and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Loan shall cease Asset fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the BorrowerSeller. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Asset Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Asset Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Asset Documents or the instruments therein; and provided further that that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Agent set forth Custodian in Section 5.5(c)a written notice delivered at least forty-five (45) days prior to such change. All Required Loan Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent All Required Asset Documents shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentCustodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent)
(1) identifying each Loan Asset for which it holds Required Loan Documents Asset Documents, the non-complying Assets and any the applicable Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To complying Asset fails to satisfy and (2) identifying each Eligible Treasury Security held in the extent such non-compliance has not been cured within such time period, such Loan shall cease Treasury Securities Account for the benefit of the Secured Parties and subject to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to Lien thereon in favor of the Administrative Agent as requested in order to take any action that agent for the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative AgentParties.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf Custodian shall retain custody of the Borrower, calculate Eligible Treasury Securities in the Borrowing Base and, if the Collateral Agent’s calculation does not correspond Treasury Securities Account in accordance with the calculation provided by terms and conditions of this Agreement and the Collateral Manager on such Collateral Management ReportSecurities Account Control Agreement, deliver such calculation all for the benefit of the Secured Parties and subject to each the Lien thereon in favor of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by Agent as agent for the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancySecured Parties.
(vii) The Collateral Agent Custodian shall make payments transfer Collections deposited in the Treasury Securities Account in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement 2.11(g) (the “Payment Transfer Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent Custodian shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the similar Collateral and (B) all calculations made by the that it holds as Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral AgentCustodian.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Trustee shall perform, perform on behalf of the Administrative Agent and the Secured Parties, Parties the following duties and obligations:
(i) The Collateral Agent Trustee shall take and retain custody of the Required Loan Documents delivered by the Borrower Seller pursuant to and Section 3.2 hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Trustee for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents, the Trustee shall review the related Required Loan Documents and (as identified on the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it ) to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents documents have been properly executed by each party thereto and have no missing or mutilated pages, (B) as identified on the Loan Checklist, there is evidence in the file that UCC and other filings (required by the Required Loan Documents) have been made, (C) each item if listed in on the Loan Checklist has been provided Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Collateral Agent without any missing pages or sections Related Property, and (D) the related original balance (based on a comparison Principal Balance, Asset number and Obligor name with respect to the note or assignment agreement, as applicable) such Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape related Asset List and is not a duplicate Asset (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentTrustee, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentTrustee, the Collateral Manager Servicer shall provide to the Collateral Agent Trustee an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of format) that contains the related Loan Checklist or that otherwise contains a list of all related Required Loan Documents and whether they require original signatures, the Loan Asset identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset. If, at the conclusion of such review, the Trustee shall determine that (i) the Principal Balances of the Collateral Agent for which it has received Required Loan Documents is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Trustee shall immediately notify the Administrative Agent and the Servicer of such discrepancy, and (ii) any Review Criteria is not satisfied, the Trustee shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by a Loan an Asset with any Review CriteriaCriterion, the Collateral Agent Trustee shall promptly notify the Collateral Manager, Borrower Seller and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criterion that such Loan shall cease Asset fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentTrustee’s delivery of such report, the Collateral Agent Trustee shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria Criterion to the BorrowerSeller. Other than the foregoing, the Collateral Agent Trustee shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Trustee shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Agent Trustee makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral AgentTrustee’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Collateral Administrative Agent set forth and the Servicer by the Trustee in Section 5.5(c)a written notice delivered at least 45 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the All Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with shall be clearly segregated from any other files of documents or instruments maintained by the Collateral AgentTrustee.
(iv) On each Reporting Date, the Collateral Agent Trustee shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan Asset for which it holds Required Loan Documents Documents, the non-complying Assets and any the applicable Review Criteria that each such Loan any non-complying Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees Trustee shall not make funds available to cooperate the Seller from the Holding Account except in compliance with the Administrative Agent and deliver any Required Loan Documents provisions of Sections 2.2(b)(iii) or 2.3(c), as applicable.
(vi) Prior to acquiring a Loan, the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager Seller or the Borrower which conflict Servicer will provide the Trustee with any instructions received by a Trade Ticket, together with the proposed form of Borrowing Notice to be used in connection therewith.
(vii) Not later than 12:00 p.m. four Business Days following the related Determination Date, the Servicer shall provide to the Administrative Agent, the Collateral Agent Backup Servicer and the Trustee via e-mail certain asset level information, which shall rely on include but not be limited to the following information: (x) for each Loan, the name and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf number of the Borrowerrelated Obligor, calculate the collection status, the loan status, the date of each Scheduled Payment, as applicable, and the Principal Balance, (y) the Borrowing Base and, if and (z) the Principal Collateral Agent’s calculation does not correspond Value and such other items as may reasonably be expected in connection with the calculation provided transactions contemplated by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”)Agreement.
(viii) The Administrative Agent Promptly after receipt thereof, the Trustee shall provide to the Servicer a copy of all written notices and each other Secured Party further authorizes communications identified as being sent to it in connection with the Collateral Agent held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Trustee be under any duty or obligation to take such any action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent Servicer (acting at the direction of the Administrative Agentor Seller) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateralexercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Servicer, prior to the occurrence of a Termination Event or the Administrative Agent, after the occurrence of a Termination Event, in which event the Trustee shall vote, consent or take such other action in accordance with such instructions.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent Trustee shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information similar collateral that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts it holds as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral AgentTrustee for others.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Sale and Servicing Agreement (NewStar Financial, Inc.)
Duties. On or before From the initial Funding DateClosing Date until its resignation pursuant to Section 12.07, and until its removal pursuant to Section 7.512.05, or the payment in full of all Obligations and the termination of all Commitments hereunder, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the items in clause (a) of the definition of Required Loan Documents in original form and the Collateral Administrator shall take an retain custody of electronic copies of the items in the definition of Required Loan Documents, (including any copies of original items described in clause (a) of such definition) and the Loan Asset Checklist, in each case delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such items), the related Loan Tape and an electronic copy of the Loan Asset Checklist, the Collateral Agent Administrator shall review the items in the definition of Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklistthat, on their face, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Asset Checklist required to be delivered to the Collateral Administrator pursuant to this Agreement has been provided to the Collateral Agent without any missing pages or sections and Administrator (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentAdministrator, in connection with each delivery of applicable Required Loan Documents hereunder to the Collateral AgentAdministrator, the Collateral Manager Servicer shall provide to the Collateral Agent Administrator an electronic copy (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, Administrator) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the applicable Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentAdministrator’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset Checklist and the Collateral Administrator shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to be on its face. If, at the conclusion of such review, the Collateral Agent is unable to confirm Administrator shall determine that the Review CriteriaCriteria is not satisfied, the Collateral Agent Administrator shall within one (1) three Business Day Days notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer (which may be via email) with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan Asset shall cease be deemed to be an Eligible a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such non-compliance deficiency is cured. In addition, if requested in writing (in the form of Exhibit L) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Administrator’s notification to the Servicer of its review of the Review Criteria, the Collateral Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian and Collateral Administrator shall not have any responsibility for reviewing any Required Loan Documents.
(vii) The In taking and retaining custody of the Required Loan Documents, the Collateral Agent agrees Custodian and the Collateral Administrator, as applicable, shall be deemed to cooperate with be acting as the agent of the Secured Parties; provided that neither the Collateral Custodian nor the Collateral Administrator makes any representations as to, and shall be responsible for, the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that, the Collateral Custodian’s and the Collateral Administrator’s respective duties shall be limited to those expressly contemplated herein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral Custodian or the Collateral Administrator, as applicable.
(iii) All original promissory notes actually delivered to the Collateral Custodian shall be kept ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Level “C” – Securities Vault, New York, NY 10022, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, OSCF LENDING III SPV, LLC, telephone: (▇▇▇) ▇▇▇-▇▇▇▇, or at such other office as shall be specified to the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided Servicer by the Collateral Manager on such Collateral Management Report, deliver such calculation Custodian in a written notice delivered at least 30 days prior to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.such
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the The Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured PartiesAgent, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and Section 5.01(f) in accordance with the terms and conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Within five ten (510) Business Days of its receipt of any the Required Loan Documents for any Portfolio Asset, the Loan Asset Schedule and the related Loan Asset Checklist, the Collateral Agent Custodian shall review the such Required Loan Documents delivered to it to confirm that (A) all Required Loan Documents for such Loan Asset File have been executed (either an original or a copy, as indicated on the Obligor name matches the related Loan Asset Checklist) and have no mutilated pages, (B) such Required filed stamped copies of the UCC financing statements and other filings identified on the related Loan Documents have been executed by each party thereto and have no missing or mutilated pagesAsset Checklist are included, (C) each item if listed in on the related Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections for such Portfolio Asset is included and (D) the related original balance (based on a comparison to the note or assignment agreementstated balance, Portfolio Asset number and Obligor name, as applicable) , with respect to such Portfolio Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape Asset Schedule (such items in clauses (A) through (D) above, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Portfolio Asset Servicer shall provide to the Collateral Agent Custodian a hard copy or an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Asset Checklist that which contains a list of all related the Portfolio Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification Portfolio Asset number and the name of the Obligor with respect to each related Loansuch Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents for any Loan Asset shall be limited to reviewing such Required Loan Documents the Review Criteria based on the information provided on the related Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (1) the stated balance of the Loan Asset with respect to which it has received the Required Loan Documents is unable to confirm not as is set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent, the Calculation Agent and the Portfolio Asset Servicer of such discrepancy within one Business Day or (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Portfolio Asset Servicer, the Calculation Agent and the Borrower Administrative Agent of such determination and provide the Collateral Manager and the Borrower Portfolio Asset Servicer with a list of the non-complying Loans Portfolio Assets and the applicable Review Criteria that they fail to satisfy, which the Portfolio Asset Servicer shall promptly provide to the Borrower upon receipt of such. The Collateral Manager Borrower shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E E) by the Collateral Manager Portfolio Asset Servicer and approved by the Administrative Agent Majority Lenders within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the any Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsLoan Asset File.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of and on behalf of the Secured Parties; provided that (A) the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Loan Asset Files or the instruments therein; therein and provided further that (B) the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals physically delivered to the Collateral Custodian shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Custodian in Schedule III hereto, or at such other office as shall be specified to the Administrative Agent set forth and the Portfolio Asset Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least 30 days prior to such change. All Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian on its inventory system and will not commingle the physical Required Loan Documents and any other Loan Asset Files delivered to the Collateral Custodian with any other files of the Collateral AgentCustodian; provided the Collateral Custodian shall segregate any commingled files upon written request of the Majority Lenders.
(iv) On each Reporting Datethe 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent Agent, the Borrower and the Collateral Manager Calculation Agent (in a form mutually agreeable to the Administrative Agent (at the direction of the Majority Lenders) and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required a Loan Documents Asset File and any the applicable Review Criteria that each such any Loan Asset File fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver Notwithstanding any Required Loan Documents provision to the Administrative Agent as requested contrary elsewhere in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative AgentTransaction Documents, the Collateral Agent Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond have any fiduciary relationship with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other any party hereto or any Secured Party further authorizes the Collateral Agent to take such action in its capacity as agent on its behalf such, and to exercise such powers under no implied covenants, functions, obligations or responsibilities shall be read into this Agreement and Agreement, the other Transaction Documents as are expressly delegated to or otherwise exist against the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoCustodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the other parties hereto that the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent Custodian shall not be required to take exercise any such incidental action hereunder, but shall be required to act or to refrain from acting (discretion hereunder and shall be fully protected in acting have no investment or refraining from acting) upon the direction of the Administrative Agentmanagement responsibility.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Fourth Amendment and Joinder to Loan and Servicing Agreement (Carlyle Secured Lending, Inc.)
Duties. On or before From the initial Funding Date, and Original Closing Date until its removal pursuant to Section 7.512.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Tape and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item listed in the Loan Asset Checklist is included and verify it has been provided to the Collateral Agent Custodian without any missing pages or sections sections, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Tape or the Obligor name does not match, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan Asset shall cease be deemed to be an Eligible a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such non-compliance deficiency is cured. In addition, if requested in writing (in the form of Exhibit N) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on the address of the Collateral Custodian on the signature pages attached hereto, or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to G▇▇▇▇ and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each month, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit N), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Golub Capital BDC, Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Agent The Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. With respect to each delivery of Required Loan Documents, the Borrower shall provide or cause to be provided a related Loan Checklist to the Custodian with respect to such Required Loan Documents that are being delivered.
(ii) Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it (as identified on the related Loan Checklist) to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Custodian and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the related Loan Tape Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian an electronic copy (in EXCEL or a comparable format acceptable to the Collateral AgentCustodian, as applicable, ) of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number number, the original principal balance of such Loan and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at At the conclusion of such review, the Custodian shall provide the Collateral Agent is unable to confirm the Review CriteriaManager, the Collateral Administrative Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide (with a copy to the Collateral Manager Agent) a report in the form attached hereto as Exhibit M identifying each Loan for which it holds Required Loan Documents and the Borrower with a list variances to the Review Criteria (the “Custodian Report”), which shall include (i) any discrepancies related to the initial Loan balances of the non-complying Loans with respect to which it has received Required Loan Documents and the applicable loan balances provided in the electronic file , and (2) any Review Criteria that they fail to satisfyis not satisfied. The Collateral Manager shall have twenty (20) Business Days after delivery of a Custodian Report to correct any non-non compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-non compliance by a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, the Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. The Custodian shall have no duty to monitor the Collateral Manager’s compliance except to provide an updated Custodian Report upon the Administrative Agent’s written request. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsInstruments or Required Loan Documents.
(iiiii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iiiiv) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent Custodian set forth in Section 5.5(c), or at such other office as shall be specified to the Administrative Agent and the Collateral Manager by the Custodian in a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian.
(ivv) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after receiving written notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(vvi) The Collateral Agent agrees Custodian agrees, subject to Section 14.2(a)(vii), to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent Custodian receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto).
(xviviii) Nothing herein The Custodian shall prevent be entitled to reasonably assume the Collateral Agent or any genuineness of its Affiliates from engaging in other businesses or from rendering services each such document and the genuineness and due authority of any kind signatures appearing thereon, shall be entitled to any Personassume that each such document is what it purports to be.
(xviiix) Concurrently herewithThe Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Custodian, or the Administrative Agent. The Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Custodian has knowledge of such matter or written notice thereof is received by the Custodian.
(x) In performing its duties, the Administrative Agent directs Custodian shall use the Collateral Agent same degree of care and attention as it employs with respect to similar collateral that it holds as the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent Custodian for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacityothers.
Appears in 1 contract
Sources: Loan and Security Agreement (Nuveen Churchill BDC INC.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loan” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistChecklist (the “Review Period”), the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the following sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear an original or a reproduction of such signature [Investcorp] Loan Checklist, and Security Agreement and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable loan note, the related initial Loan balance listed when entered into or obtained by the Borrower, Loan identification number and Obligor name with respect to such Loan is referenced on the related Loan Tape checklist and is not a duplicate Loan (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral InvestmentCollateral Manager shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral AgentCustodian) listing Loan identification number, as applicablename of Obligor, of and initial Loan balance and the related Loan Checklist checklist per file that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance when entered into or obtained by the Borrower with respect to each related Loan. If after the Review Period, any of the Review Criteria are not satisfied, the Collateral Custodian shall provide the InvestmentCollateral Manager, the Administrative Agent and the Borrower a report identifying each of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. In addition, if requested in writing in the form of Exhibit E by the InvestmentCollateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return the Required Loan Documents for any Loan which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Underlying Instruments. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instrumentschecklist.
(ii) In taking and retaining custody of the Underlying Instruments, Instruments the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the offices of Custody Facilities (or such other location identified to the Collateral Administrative Agent set forth in Section 5.5(cand Borrower). All such Required Loan Documents that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the All such Required Loan Documents on its inventory system and will not commingle that are originals or copies shall be clearly segregated from any other documents or instruments maintained by the physical Collateral Custodian. All such Required Loan Documents with any other files of that are delivered to the Collateral AgentCustodian in electronic format shall be saved onto disks and/or onto the Collateral Custodian’s secure computer system, and maintained in a manner so as to permit retrieval and access.
(iv) The Collateral Custodian shall make payments in accordance with Section 2.7 and Section 2.8 (the “Payment Duties”). [Investcorp] Loan and Security Agreement
(v) On each Reporting DateDate following the commencement of the Revolving Period, the Collateral Agent Custodian shall provide a written report to the Administrative Agent Agent, the Borrower, and the Collateral InvestmentCollateral Manager (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be including an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agentexception report.
(vi) The Collateral Agent shallFollowing the commencement of the Revolving Period, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of Custodian shall render to the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality InvestmentCollateral Manager a daily report of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect all deposits to and withdrawals from the Collateral (Accounts for such Business Day and the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition outstanding balance as of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts end of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each such Business Day, provide to the Collateral Manager daily reports reflecting and (y) a report of settled trades for such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Loan, Security and Investment Management Agreement (Investcorp Credit Management BDC, Inc.)
Duties. On or before the initial Funding Closing Date, and until its removal pursuant to Section 7.5such time (if applicable) as it shall become the Successor Servicer, the Collateral Agent Backup Servicer shall perform, on behalf of the Borrower and the Administrative Agent and the other Secured Parties, the following duties and obligations:
(i) The Collateral Agent On or before the Closing Date, the Backup Servicer shall take and retain custody accept from the Servicer delivery of the Required Loan Documents delivered by information required to be set forth in the Borrower pursuant to Periodic Reports in hard copy and in accordance with an agreed upon electronic format.
(ii) Not later than 1:00 p.m. (New York City time) on the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) third Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistDay prior to each Reporting Date, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Agent, the Collateral Manager Servicer shall provide to the Collateral Agent Backup Servicer and the Backup Servicer shall accept delivery of an electronic copy file in EXCEL or a comparable an agreed upon electronic format acceptable (the “Tape”) from the Servicer, which shall include but not be limited to the following information: (x) for each Collateral AgentDebt Obligation being transferred, as applicable, the name and number of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signaturesObligor, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrarycollection status, the Collateral Agent’s obligation Debt Obligation status, the date of each Scheduled Payment, and the Outstanding Principal Balance, and (y) the Aggregate Outstanding Principal Balance.
(iii) Prior to the related Payment Date, the Backup Servicer shall review the Required Loan Documents Periodic Report to ensure that it is complete on its face and that all items in such Periodic Report have been accurately calculated, if applicable, and reported based upon the Tape or such other information provided to the Backup Servicer by the Servicer which is required by the Backup Servicer to perform its obligations hereunder. The Backup Servicer shall be limited to reviewing such Required Loan Documents notify the Administrative Agent, the Borrower and the Servicer of any disagreements with the Periodic Report based on such review not later than the information Business Day preceding such Payment Date to such Persons.
(iv) If the Borrower or the Servicer disagrees with the report provided on under Section 7.19(b)(iii) by the Loan Checklist. If, at Backup Servicer or if the conclusion of Borrower or the Servicer or any subservicer has not reconciled such reviewdiscrepancy, the Collateral Backup Servicer agrees to confer with the Borrower or the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Borrower or the Servicer if possible, and notify the Administrative Agent of the resolution thereof. The Borrower or the Servicer hereby agree to cooperate at their own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under Section 7.19(b)(iii) by the Backup Servicer, such discrepancy is unable to confirm the Review Criterianot resolved, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent Backup Servicer shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such the continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery existence of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrowerdiscrepancy. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody Following receipt of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent Servicer shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of deliver to the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or Secured Parties and the Collateral Manager Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to the Collateral Agenttake with respect thereto.
(xvv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to duties described in this Section 7.19(b), in the Collateral Agent absence of bad faith or gross negligence, the Backup Servicer, in the performance of its duties and obligations hereunder, the Collateral Agent shall not be required is entitled to take any such incidental action hereunderrely conclusively, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon so relying, on the direction contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. The parties acknowledge that the Backup Servicer’s ability to perform hereunder is subject to its timely receipt of the Administrative AgentTape and Periodic Report, if applicable.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the The Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured PartiesAgent, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the LoanPortfolio Asset Files and the Required Loan LoanPortfolio Documents delivered by the Borrower or the Portfolio Asset Servicer pursuant to and in accordance with the terms and conditions of this AgreementSection 5.01(f), all for the benefit of the Administrative Agent on behalf of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan LoanPortfolio Documents and (if the related Loan ChecklistCollateral Custodian receives no more than 10 LoanPortfolio Asset Files during such five Business Day period) or within a reasonable timeframe as mutually agreed upon (if the Collateral Custodian receives more than 10 LoanPortfolio Asset Files during such five Business Day period), the Collateral Agent Custodian shall review the such Required Loan LoanPortfolio Documents delivered to it to confirm that (A) the principal amount and the Obligor name on the applicable Loan Agreement and any related promissory note matches that on the LoanPortfolio Asset Schedule and the Loan ChecklistAsset number on the applicable Loan Agreement matches that on the LoanPortfolio Asset Schedule, as applicable, (B) such Required Loan Documents LoanPortfolio Documents, have been executed by each party thereto (either an original or a copy, as indicated on the related LoanPortfolio Asset Checklist), appear to relate to such LoanPortfolio Asset and have no missing or mutilated pages, (C) each item listed in filed copies of the Loan UCC financing statements and other filings identified on the related LoanPortfolio Asset Checklist has been provided to the Collateral Agent without any missing pages or sections are included and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance if listed on the Loan Tape related LoanPortfolio Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such LoanPortfolio Asset is included (such the items (A) through (D) to be reviewed pursuant to this sentence, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents a LoanPortfolio Asset File hereunder to the Collateral AgentCustodian, the Collateral Manager Portfolio Asset Servicer shall provide (or cause the Underlying Servicers to provide) to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL and separately uploaded by the Borrower or a comparable format acceptable the Underlying Servicers or their respective designee to the Collateral Agentdesignated C▇▇▇▇▇▇.▇▇▇; provided that each .pdf document will be identified with the loan number in the format “LoanNumber.DocumentName.pdf” (example, as applicable, 12345.mortgage.pdf)) of the related Loan LoanPortfolio Asset Checklist that which contains a list of all related Required Loan Documents and whether they require original signaturesthe LoanPortfolio Asset information with respect to the LoanPortfolio Asset File being delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch LoanPortfolio Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents LoanPortfolio Asset File shall be limited to reviewing such Required Loan Documents the Review Criteria and based on the information provided on the Loan related LoanPortfolio Asset Checklist. If, at the conclusion of such review, the Collateral Agent is unable Custodian shall determine that (1) the principal balance of the Loan Asset with respect to confirm which it has received the Review CriteriaLoanPortfolio Asset File does not match the principal balance set forth on the LoanPortfolio Asset Schedule, the Collateral Agent Custodian shall notify the Administrative Agent, Initial Lender and the Facility Servicer of such discrepancy within one Business Day or (2) any other Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Borrower, Administrative Agent, Initial Lender and the Borrower Facility Servicer of such determination and provide the Collateral Manager Borrower and the Borrower Facility Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Borrower shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time periodIn addition, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as if requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or writing by the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments or Portfolio Asset Servicer in accordance with Section 2.7 9.08 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent approved by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Administrative Agent (acting at the direction of the Administrative AgentMajority Lenders) as its agent to execute and deliver all further instruments and documents, and take all further action that within ten Business Days of the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any Collateral Custodian’s delivery of them to exercise or enforce any of their respective rights hereunder, including, without limitationsuch report, the execution by Collateral Custodian shall return any LoanPortfolio Asset File which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or Custodian shall not have any responsibility for reviewing any LoanPortfolio Asset File.
(ii) In taking and retaining custody of the Loans now existing or hereafter arisingLoanPortfolio Asset Files, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause Collateral Custodian shall be deemed to relieve be acting as the Borrower or the Collateral Manager of their respective obligations to protect the interest agent of the Collateral Administrative Agent (for the benefit on behalf of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, ; provided that (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect Custodian makes no representations as to the Collateral existence, perfection or priority of any Lien on the LoanPortfolio Asset Files or the instruments therein and (B) all calculations made the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) All LoanPortfolio Asset Files shall be continually stored in fire resistant vaults, rooms or cabinets at the locations specified as the address of the Collateral Custodian in Section 11.02, or at such other office as shall be specified to the Administrative Agent, the Facility Servicer and the Borrower by the Collateral Agent pursuant Custodian in a written notice delivered at least 30 days prior to this Section 7.2(bsuch change. The Collateral Custodian shall segregate the LoanPortfolio Asset Files on its inventory system.
(iv) using information that is not routinely maintained by On each Reporting Date following the first delivery of Required LoanPortfolio Documents to the Collateral AgentCustodian, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor the Collateral Custodian shall be made using such amounts as provided by provide a written report to the Administrative Agent, the Borrower or and the Facility Servicer (in a form mutually agreeable to the Administrative Agent (at the direction of the Initial Lender), the Borrower and the Collateral Manager Custodian) identifying each LoanPortfolio Asset for which it holds a LoanPortfolio Asset File and the applicable Review Criteria that any LoanPortfolio Asset File fails to the Collateral Agentsatisfy. The Borrower shall have ten Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria.
(xvv) The Administrative Agent Collateral Custodian has no duties or obligations other than those specifically set forth herein or as may direct subsequently be agreed to in writing by the Collateral Agent to take parties hereto.
(vi) Notwithstanding any such incidental action hereunder. With respect to other actions which are incidental provision to the actions specifically delegated to contrary elsewhere in the Collateral Agent hereunderTransaction Documents, the Collateral Agent Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to take exercise any such incidental action hereunder, but shall be required to act or to refrain from acting (discretion hereunder and shall be fully protected in acting have no investment or refraining from acting) upon the direction of the Administrative Agentmanagement responsibility.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (FS Credit Real Estate Income Trust, Inc.)
Duties. On or before the initial Funding Date, date hereof and until its removal pursuant to Section 7.511.04, the Collateral Agent Document Custodian shall perform, on behalf of the Administrative Collateral Agent and the Secured Parties, the following duties and obligations:
(i) The In connection with the delivery of a Loan Asset Checklist and Required Loan Documents as of a Cut-Off Date, no later than five (5) Business Days after such Cut-Off Date, the Borrower shall deliver to the Collateral Agent and the Document Custodian electronic copies of the Required Loan Documents for the Loan Assets on such Cut-Off Date. The Document Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Collateral Agent, as agent for the Secured Parties. Within ten (10) Business Days following each applicable Cut-Off Date (and provided the Document Custodian has received the Loan Asset Checklist) with respect to the Loan Assets on such Cut-Off Date, and five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistAsset Checklist with respect to such Loan Assets (the “Review Period”), the Collateral Agent Document Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear an original or a reproduction of such signature and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable loan note, the related initial Loan balance listed when entered into or obtained by the Borrower, Loan identification number and Obligor name with respect to such Loan is referenced on the related Loan Tape List (such items (A) through (DB) collectively, the “Review Criteria”)) and shall prepare a report substantially in the form of Exhibit L-1 (the “Custodial Receipt”) including the Exceptions Report attached as Schedule A thereto. In If so requested by the Document Custodian, in order to facilitate the foregoing review by the Collateral AgentDocument Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentDocument Custodian, the Collateral Manager shall provide to the Document Custodian (with a copy to the Collateral Agent Agent) an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of Document Custodian) or the related Loan Asset Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance when entered into or obtained by the Borrower with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at At the conclusion of such review, if the Collateral Agent is unable to confirm the Document Custodian shall determine that there are discrepancies in any Review Criteria, the Collateral Agent Document Custodian shall within one include a list of the Review Criteria discrepancies (1an “Exception Report”) Business Day notify in its Custodial Receipt to the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfyAgent. The Collateral Manager shall have twenty ten (2010) Business Days to correct any non-compliance with any Review CriteriaCriteria listed on the Exception Report. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteriadiscrepancies listed on the Exception Report to the Collateral Agent’s satisfaction, the Administrative Collateral Agent shall promptly notify the Borrower of such determination by providing a written notice to the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E L-2 by the Collateral Manager Borrower and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent Document Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Document Custodian shall not have any responsibility for reviewing any Underlying InstrumentsLoan Documents. The Borrower shall deliver, or cause to be delivered, to the Document Custodian all of the Required Loan Documents for each Loan Document owned by the Borrower at any time during the term of this Agreement at the address identified herein. The Document Custodian shall not be responsible for any Loan Document until actually received by it. Notwithstanding any language to the contrary herein, the Document Custodian shall make no representations as to, and shall not be responsible to verify, (i) the validity, legality, ownership, title, perfection, priority, enforceability, due authorization, recordability, sufficiency for any purpose, or genuineness of any of the documents contained in the Loan Documents or (ii) the collectability, insurability, effectiveness or suitability of any such Loan Document.
(ii) In taking and retaining custody of the Underlying InstrumentsLoan Documents, the Collateral Agent Document Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals or copies of promissory notes or allonges shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c)Custody Facilities. All Required Loan Documents that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit identification, retrieval and access. The Collateral Agent shall segregate the Required All Loan Documents on its inventory system that are delivered to the Document Custodian in electronic format shall be saved onto disks and/or onto the Document Custodian’s secure computer system, and will not commingle the physical Required Loan Documents with any other files of the Collateral Agentmaintained in a manner so as to permit retrieval and access.
(iv) The Collateral Manager and the Collateral Agent may request that the Document Custodian provide an updated list of Loans for which it holds Required Loan Documents and the related Exception Report.
(v) On each Reporting Date, the Collateral Agent Document Custodian shall provide a written report to the Administrative Collateral Agent and the Collateral Manager (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents Documents, the non-complying Loans and any the applicable Review Criteria that each such any non-complying Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Brightwood Capital Corp I)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loan” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistChecklist (the “Review Period”), the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear an original or a reproduction of such signature and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable loan note, the related initial Loan balance listed when entered into or obtained by the Borrower, Loan identification number and Obligor name with respect to such Loan is referenced on the related Loan Tape checklist and is not a duplicate Loan (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral AgentCustodian) listing Loan identification number, as applicablename of Obligor, of and initial Loan balance and the related Loan Checklist checklist per file that contains a list of all related Required Loan [Investcorp] Loan and Security Agreement Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance when entered into or obtained by the Borrower with respect to each related Loan. Notwithstanding anything herein to If after the contraryReview Period, any of the Review Criteria are not satisfied, the Collateral Agent’s obligation to review Custodian shall provide the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such reviewCollateral Manager, the Collateral Administrative Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list report identifying each of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying Instruments. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan checklist.
(ii) In taking and retaining custody of the Underlying Instruments, Instruments the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the offices of Custody Facilities (or such other location identified to the Collateral Administrative Agent set forth in Section 5.5(cand Borrower). All such Required Loan Documents that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the All such Required Loan Documents on its inventory system and will not commingle that are originals or copies shall be clearly segregated from any other documents or instruments maintained by the physical Collateral Custodian. All such Required Loan Documents with any other files of that are delivered to the Collateral AgentCustodian in electronic format shall be saved onto disks and/or onto the Collateral Custodian’s secure computer system, and maintained in a manner so as to permit retrieval and access.
(iv) The Collateral Custodian shall make payments in accordance with Section 2.7 and Section 2.8 (the “Payment Duties”).
(v) On each Reporting DateDate following the commencement of the Revolving Period, the Collateral Agent Custodian shall provide a written report to the Administrative Agent Agent, the Borrower, and the Collateral Manager (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be including an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agentexception report.
(vi) The Collateral Agent shallFollowing the commencement of the Revolving Period, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation Custodian shall render to each of the Administrative Agent, Borrower Agent and Collateral Manager within one (1) Business Day a daily report of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect all deposits to and withdrawals from the Collateral (Accounts for such Business Day and the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition outstanding balance as of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts end of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each such Business Day, provide to the Collateral Manager daily reports reflecting and (y) a report of settled trades for such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this . [Investcorp] Loan and Security Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Loan, Security and Collateral Management Agreement (Investcorp Credit Management BDC, Inc.)
Duties. On The Portfolio Asset Servicer shall take or before cause to be taken all such actions as may be necessary or advisable to oversee and administer the initial Funding Date, and until its removal pursuant Underlying Servicers in respect of the payments to Section 7.5, the Borrower under the Collateral Agent shall performPortfolio from time to time that are to be Collections, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and all in accordance with Applicable Law and the terms Servicing Standard and conditions of this Agreement, all for to take the benefit actions of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Agent, in connection with each delivery of Required Loan Documents hereunder to the Collateral Agent, the Collateral Manager shall provide to the Collateral Agent an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers Portfolio Asset Servicer under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoDocuments. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction duties of the Administrative AgentPortfolio Asset Servicer shall include the following:
(i) as its agent maintaining or causing the Underlying Servicers to execute and deliver all further instruments and documents, and take all further action that maintain the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence following records for each Loan Asset:
a. any Loan Asset Assignment;
b. the security interests granted by instructions from the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower (or the Collateral Manager of their respective obligations Portfolio Asset Servicer on the Borrower’s behalf) to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the CollateralObligors, including Underlying Servicers or Counterparty Lenders to file financing and continuation statements make all payments in respect of such Loan Asset directly to the CollateralCollection Account;
c. as applicable, any Participation Agreement, any related supplement to such Participation Agreement and the related direction from the related Counterparty Lender to the related Obligor or Underlying Servicer (1) to make all payments in respect of such Loan Asset directly to the Collection Account and (2) to deliver to the Portfolio Asset Servicer a copy of all requests, notices and reports required to be delivered by such Counterparty Lender or such Underlying Servicer to the Borrower under such Participation Agreement, in each case, acknowledged by such Underlying Servicer;
d. the related Loan Asset Checklist or a supplement thereto, copies of the related Loan Agreement and each other agreement instrument or certificate and other document identified in such Loan Asset Checklist, and copies of any amendment, waiver, supplement or modification of any thereof that is delivered to the Portfolio Asset Servicer;
e. each request, notice and report delivered by an Obligor, Counterparty Lender or Underlying Servicer to the Portfolio Asset Servicer, to the extent received by the Portfolio Asset Servicer hereunder, and all requests, notices and other correspondence delivered by the Portfolio Asset Servicer, under a Loan Agreement or Participation Agreement; and
f. all account statements, reports and other documents and correspondence received by the Portfolio Asset Servicer from the Collection Account.
(ixii) If, in performing its duties under this Agreement, maintaining or causing the Collateral Agent is required Underlying Servicers to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database maintain all necessary servicing records with respect to the Collateral (the “Collateral Database”), Portfolio and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and providing such records to the extent of, information furnished Administrative Agent and each Lender (with a copy to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xiCustodian) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide together with such other information with respect to the Collateral as may be routinely maintained by Portfolio (including information relating to the Collateral Agent or Portfolio Asset Servicer’s performance under this Agreement) as may be required by this Agreement, in each case hereunder or as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower Initial Lender or the Collateral Manager Majority Lenders may reasonably request, including but not limited to:
a. causing the Underlying Servicers to deliver on a monthly basis, as soon as available, but no later than when sent to the Collateral Agent.
(xv) The Administrative Agent may direct Borrower, a remittance report for each Loan Asset showing the Collateral Agent date any payments are or were required to take any such incidental action hereunder. With be made with respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (Loan Asset during such month and shall be fully protected in acting or refraining from acting) upon the direction a description of the Administrative Agent.
type of payment (xvifor example, Principal Collections, Interest Collections or a combination thereof) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in made on such capacity.date;
Appears in 1 contract
Sources: Loan and Servicing Agreement (FS Credit Real Estate Income Trust, Inc.)
Duties. On or before the initial Funding Date, and until Until its removal pursuant to Section 7.513.4, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered to it by the Borrower pursuant to and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured PartiesParties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties and with respect to documents maintained in Electronic Form, such documents shall be delivered to the Electronic Vault in the name of the Collateral Custodian on behalf of the Borrower that is maintained with the E-Vault Provider, identified via the Required Legend, and under the control of the Administrative Agent where the Collateral Custodian shall perform the certification described below. Within five (5) Business Days of its receipt of any Required purported Loan Documents, the Loan Checklist and an updated Loan List (the “Review Period”), or, if more than fifty (50) Loan Documents are delivered on any particular Business Day, such greater time period that is mutually acceptable to the Borrower, the Administrative Agent and the related Loan ChecklistCollateral Custodian (which acceptance may be conclusively confirmed by e-mail), the Collateral Agent Custodian shall review the purported Required Loan Documents delivered to it to confirm that (A) the Obligor name matches if the Loan ChecklistChecklist indicates that any document must contain an original signature, each such document appears to bear the original signature, or if the Loan Checklist indicates that such document may contain a copy of a signature, that such document appears on its face to bear a reproduction of such signature and (B) based on a review of the applicable note (or the applicable Contract, in the case of an Equipment Finance Loan), the related initial Loan balance, Loan identification number and Obligor name with respect to such Loan is referenced on the related Loan Checklist and the Loan to which such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the relate is not a duplicate Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent an electronic copy Custodian the updated Loan List (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of Custodian) and the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within Within one (1) Business Day notify after the end of the Review Period, the Collateral Manager Custodian shall deliver to the Borrower, the Servicer, and the Borrower Administrative Agent a certificate substantially in the form of such determination and provide Exhibit I attached hereto (the “Custodial Certificate”), which shall indicate whether any Required Loan Documents listed on the Loan Checklist are not included in the Required Loan Documents so delivered to the Collateral Manager Custodian and include a report of exceptions to the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy(each, an “Exception Report”). The Collateral Manager Servicer shall have twenty (20) Business Days days to correct any non-compliance with any Review Criteria. If after the conclusion of ; provided, however that if such time period the Collateral Manager has still not cured any non-compliance by pertains to the receipt of original recorded documents from a filing office, such period shall be one hundred twenty (120) days. With respect to Required Loan Documents in Electronic Form maintained in the Electronic Vault in the name of the Collateral Custodian on behalf of the Borrower that is maintained with any Review Criteriathe E-Vault Provider, identified via the Required Legend, and under the control of the Administrative Agent, the Collateral Agent Required Loan Documents shall promptly notify be released pursuant to the Collateral Manager, direction of the Borrower and the Administrative Agent in one of the following methods: (i) via a vault to vault transfer within the E-Vault Provider’s Electronic System or (ii) such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E other electronic transfer as mutually agreed by the Collateral Manager and approved by Borrower, the Administrative Agent within ten (10) Business Days of and the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying InstrumentsCustodian.
(ii) In taking and retaining custody of the Underlying InstrumentsLoan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals or copies of Contracts (in the case of Equipment Finance Loans), promissory notes, stock powers, or allonges (other than documents delivered in Electronic Form) shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c)Custody Facilities. All Required Loan Documents that are originals or copies shall be placed together with an appropriate identifying label (other than documents in Electronic Form) and maintained in such a manner so as to permit identification, retrieval and access. The Collateral Agent Custodian shall segregate keep the Required Loan Documents on its inventory system and will not commingle (which with regards to documents in Electronic Form shall, subject to Section 5.1(pp), be maintained in the physical Required Loan Documents with any other files Electronic Vault in the name of the Collateral Custodian on behalf of the Borrower that is maintained with the E-Vault Provider, identified via the Required Legend, and under the control of the Administrative Agent) clearly segregated from any other documents or instruments in its files.
(iv) [Reserved].
(v) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer a written report (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) ), identifying each Loan for which it holds Required Loan Documents Documents, and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative AgentException Report.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does Custodian was not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation engaged to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or perform any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate services in this Agreement for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager purpose of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database making findings with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition accuracy of the Collateral, based upon, and to information or data regarding the extent of, information furnished Loan Documents provided to the Collateral Agent Custodian hereunder as contemplated by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and Rule 17g-10 under the Securities Account Control Agreement. For the avoidance Exchange Act of doubt1934, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.as
Appears in 1 contract
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.512.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Sections 3.02(a) and 3.04(b) in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Asset Checklist, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Asset Checklist has been provided to the Collateral Agent without any missing pages or sections and Custodian (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian is unable to confirm clauses (A) or (D) of the Review Criteria, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any other Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Servicer and the Borrower Administrative Agent of such determination and provide the Collateral Manager Servicer and the Borrower Administrative Agent with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time periodperiod and the Administrative Agent has provided the Servicer with written confirmation of such non-compliance, such Loan Asset shall cease be deemed to be a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such deficiency is cured. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents.
(ii) In taking and retaining custody of the Required Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified in Section 5.06(c) or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days (or such shorter notice period as consented to by the Administrative Agent) prior to such change. All Required Loan Documents shall be placed together with an Eligible appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Custodian shall segregate the Required Loan until Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to Solar and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent and the Borrower.
(iv) On the 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), commencing in March 2015, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy. The Servicer shall have 20 Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period and the Administrative Agent has provided the Servicer with written confirmation of such non-compliance, such Loan Asset shall be deemed to be a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such deficiency is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 1 contract
Sources: Consent and Omnibus Amendment (Solar Senior Capital Ltd.)
Duties. On or before the initial Funding Date, and until Until its removal pursuant to Section 7.513.9, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. With respect to each delivery of Required Loan Documents, the Borrower shall provide or cause to be provided a related Loan Checklist to the Custodian with respect to such Required Loan Documents that are being delivered.
(ii) Within five ten (510) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it (as identified on the related Loan Checklist) to confirm that (A) the Obligor name matches the Obligor name identified on the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto and appear to have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Custodian and (D) the related original balance Outstanding Balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to matches the applicable loan balance Outstanding Balance listed on the related Loan Tape Checklist (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian an electronic copy (in EXCEL or a comparable format acceptable to the Collateral AgentCustodian, as applicable, ) of the related Loan Checklist that contains a list of the Loans, all related Required Loan Documents and whether they require original signatures, the Loan identification number number, the Outstanding Balance of such Loan and the name of the Obligor with respect to each related LoanLoan identified on such schedule. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at At the conclusion of such review, the Custodian shall provide the Collateral Agent is unable to confirm the Review CriteriaManager, the Collateral Administrative Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide (with a copy to the Collateral Manager Agent) a report in the form attached hereto as Exhibit L identifying each Loan for which it holds Required Loan Documents and the Borrower with a list variances to the Review Criteria (the “Custodian Report”), which shall include (i) any discrepancies related to the Outstanding Balance of the non-complying Loans with respect to which it has received Required Loan Documents and the applicable Outstanding Balance provided in the electronic file of the Loan Checklist, and (ii) any Review Criteria that they fail to satisfyis not satisfied. The Collateral Manager shall have twenty ten (2010) Business Days after delivery of a Custodian Report to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance noncompliance by a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, the Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E L by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsInstruments or Required Loan Documents.
(iiiii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated hereinherein and no implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Custodian.
(iiiiv) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent Custodian at the address set forth on Annex A hereto, or at such other office as shall be specified to the Administrative Agent and the Collateral Manager by the Custodian in Section 5.5(c)a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian.
(ivv) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty ten (2010) Business Days after receiving written notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(vvi) The Collateral Agent agrees Custodian agrees, subject to Section 13.3(a), to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order for the Administrative Agent to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent Custodian receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other reasonable actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, ; provided that the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto).
(xviviii) Nothing herein The Custodian may conclusively rely on and shall prevent be fully protected in acting upon any certificate (including any Officer’s Certificate of the Collateral Manager or the Borrower), instrument, opinion, notice, letter, facsimile, electronic communication or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties. The Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Administrative Agent or any (to the extent applicable) the Collateral Manager or (b) the verbal instructions of its Affiliates from engaging in other businesses the Administrative Agent or from rendering services of any kind (to any Personthe extent applicable) the Collateral Manager.
(xviiix) Concurrently herewithThe Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Custodian, or the Administrative Agent directs Agent. The Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Agent and Custodian has knowledge of such matter or written notice thereof is received by the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacityCustodian.
Appears in 1 contract
Sources: Loan and Security Agreement (Kayne Anderson BDC, Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal or replacement pursuant to Section 7.511.05 or Section 11.07, as applicable, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent is unable Custodian shall determine that (I) the original balance of the Loan Asset with respect to confirm which it has received Required Loan Documents does not match the Review Criteriabalance set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager Administrative Agent and the Borrower Servicer of such determination and provide deliver to the Collateral Manager Administrative Agent and the Borrower with Servicer a certification substantially in the form attached hereto as Exhibit P that includes a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E J) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Custodian located at 1▇▇▇ ▇▇▇▇ ▇▇▇, Florence, South Carolina, 29501, or at such other office as shall be specified to the Administrative Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each Reporting Datemonth, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility. The Collateral Agent Custodian shall not be deemed to assume any obligations or liabilities of the Borrower or Servicer hereunder or under any other Transaction Document.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.511.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the items in clause (a) of the definition of Required Loan Documents in original form and the Collateral Administrator shall take and retain custody of electronic copies of the items in the definition of Required Loan Documents (including any copies of original items described in clause (a) of such definition) and the Loan Asset Checklist, in each case delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such items), the related Loan Asset Schedule and an electronic copy of the Loan Asset Checklist, the Collateral Agent Administrator shall review the items in the definition of Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklistthat, on their face, (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Asset Checklist required to be delivered to the Collateral Administrator pursuant to this Agreement has been provided to the Collateral Agent without any missing pages or sections and Administrator (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentAdministrator, in connection with each delivery of applicable Required Loan Documents hereunder to the Collateral AgentAdministrator, the Collateral Manager Servicer shall provide to the Collateral Agent Administrator an electronic copy (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, Administrator) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the applicable Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentAdministrator’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistAsset Checklist and the Collateral Administrator shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to be on its face. If, at the conclusion of such review, the Collateral Agent is unable to confirm Administrator shall determine that the Review CriteriaCriteria is not satisfied, the Collateral Agent Administrator shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer (which may be via email) with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan Asset shall cease be deemed to be an Eligible a Warranty Loan Asset and shall no longer be included in the calculation of any Borrowing Base hereunder until such non-compliance deficiency is cured. In addition, if requested in writing (in the form of Exhibit J) by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Administrator’s notification to the Servicer of its review of the Review Criteria, the Collateral Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Custodian and Collateral Administrator shall not have any responsibility for reviewing any Required Loan Documents.
(ii) In taking and retaining custody of the Required Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting as the agent of the Secured Parties; provided that neither the Collateral Custodian nor the Collateral Administrator makes any representations as to, and shall be responsible for, the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided, further, that the Collateral Custodian’s and the Collateral Administrator’s respective duties shall be limited to those expressly contemplated herein and no implied obligations or responsibilities shall be read into this Agreement against or on the part of the Collateral Custodian or the Collateral Administrator, as applicable.
(iii) All items in clause (a) of the definition of Required Loan Documents in original form shall be kept in fire resistant vaults, rooms or cabinets at the address of the Collateral Custodian located at Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Level “C”—Securities Vault, New York, NY 10022, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ (212-559-1207), OSCF LENDING II SPV, LLC, or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in a written notice delivered at least thirty (30) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each month, the Collateral Custodian and the Collateral Administrator shall identify each Loan Asset for which it holds any Required Loan Documents and the Collateral Administrator shall identify any applicable Review Criteria that any Loan Asset fails to satisfy.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, neither the Collateral Custodian nor the Collateral Administrator shall have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian or the Collateral Administrator. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that neither the Collateral Custodian nor the Collateral Administrator shall be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent agrees Custodian and the Collateral Administrator agree to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents held by it to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that allow the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further any action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The parties acknowledge and agree that the Collateral Custodian is not expecting to receive a significant number of original Required Loan Documents. In the event the Collateral Custodian receives an amount in excess of its expectation, as determined in its sole discretion, the Collateral Custodian may either appoint a sub-agent custodian, or require the Borrower to enter into a document custody agreement in form and substance reasonably acceptable to the Borrower directly with a separate custodian, in respect of such original Required Loan Documents.
(iii) The Administrative Agent may direct the Collateral Agent Custodian and the Collateral Administrator to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian or the Collateral Administrator, as applicable, hereunder, neither the Collateral Agent Custodian nor the Collateral Administrator shall not be required to take any such incidental action action, hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that neither the Collateral Agent Custodian nor the Collateral Administrator shall be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses the reasonable determination of the Collateral Custodian, or from rendering services the Collateral Administrator, as applicable (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewithshall expose such party to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian or the Collateral Administrator, as applicable, requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all Custodian or the Collateral Agent’s rightsAdministrator, protections and immunities provided herein as applicable does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall apply be deemed to have declined to consent to the relevant action.
(iv) Neither the Collateral Agent Custodian nor the Collateral Administrator shall be liable for any actions taken action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Collateral Administrator, as applicable, or the Administrative Agent. Neither the Collateral Custodian nor the Collateral Administrator shall be taken deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless written notice thereof is received by it.
(v) The Borrower acknowledges that in accordance with the Customer Identification Program (CIP) requirements under the Sale Agreement USA PATRIOT Act and its implementing regulations, the Securities Account Control Agreement Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such capacityinformation as it may request including, but not limited to, its name, physical address, tax identification number and other information that will help the Collateral Custodian to identify and verify its identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. On or before From the initial Funding Closing Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents in electronic form delivered by the Borrower pursuant to and Section 3.2 hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents Documents, if applicable, have been executed by each party the parties thereto (either the original or a copy, as indicated on the Loan Checklist) and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Custodian, and (D) the related original Loan balance (based on a comparison to the note or assignment agreement, as applicable) ), is greater than or equal to the applicable loan balance listed on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Checklist that which contains a list of all related the Loan information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent Custodian is unable to confirm clauses (A) or (D) of the Review Criteria, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (2) any other Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty ten (2010) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance determination by providing a written report to such persons identifying, with particularity, each Loan and each of the applicable Review Criteria that such Loan shall cease fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E G by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that that, the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments USActive 57833767.7 therein; and provided further that that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All original Required Loan Documents that are originals delivered to the Collateral Custodian, if any, shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Custodian located in Massachusetts or at DTCC ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: 5th floor/NY Window/▇▇▇▇▇▇ ▇▇▇▇▇▇, FBO: State Street Bank & Trust for account XXXX (SSB Fund Number), or at such other office as shall be specified to the Administrative Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall clearly segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to North Haven and its Affiliates and its Subsidiaries; provided that, the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent and the Borrower.
(iv) On each Reporting Date, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(vi) If, in performing its duties under this Agreement, the Collateral Custodian is required to decide between alternative courses of action, the Collateral Custodian may request written instructions from the Servicer as to the course of action desired by the Servicer; provided that if a Termination Event or Unmatured Termination Event occurs and is continuing, the Collateral Custodian shall request written instructions from the Administrative Agent. If the Collateral Custodian does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Custodian may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent Custodian shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Custodian shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice. USActive 57833767.7
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit G), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article X. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that, the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections including a Termination Event, unless a Responsible Officer of the Collateral Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian. Notice or knowledge of any matter by ▇▇▇▇▇ Fargo in its capacity as Administrative Agent or Lender and immunities provided herein other publically filed information shall apply not constitute actual knowledge of a Responsible Officer of the Collateral Custodian or notice to the Collateral Agent for any actions taken or omitted to be taken Custodian.
(iv) The parties hereto acknowledge that, in accordance with the Customer Identification Program requirements under the Sale Agreement USA PATRIOT Act and its implementing regulations, the Securities Account Control Agreement Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such capacityinformation as it may request, including the Borrower’s USActive 57833767.7 name, physical address, tax identification number and other information, that will help the Collateral Custodian to identify and verify the Borrower’s identity (and, in certain circumstances, the beneficial owners thereof), such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Appears in 1 contract
Sources: Loan and Servicing Agreement (North Haven Private Income Fund LLC)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.512.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.03(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents Documents, the related Collateral Obligation Tape and the related Loan Document Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Document Checklist) and have no missing or mutilated pagespages (in the case of electronic copies, “mutilated” shall mean that the pages are illegible) (B) UCC and other filings required under the applicable Underlying Instruments have been provided as listed on the Document Checklist, (C) each item if listed in on the Loan Checklist has been provided Document Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Collateral Obligation number and Obligor name, as applicable, with respect to such Collateral Obligation is greater than or equal to the applicable loan balance listed referenced on the Loan related Collateral Obligation Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian a copy (which may be an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, copy) of the related Loan Document Checklist that which contains a list of all related the Collateral Obligation information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Collateral Obligation. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Document Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Collateral Obligation with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaCollateral Obligation Tape, the Collateral Custodian shall notify the Administrative Agent and the Collateral Manager of such discrepancy within one (1) Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans non‑complying Collateral Obligations and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance non‑compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested directed in writing (in the form of Exhibit E M, which shall include an incumbency certificate for each authorized signer) by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Collateral Obligation which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying Instruments.Required Loan Documents. ‑200‑
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals required to be kept in physical form shall be kept in fire resistant vaults, rooms or cabinets at the offices office of the Collateral Custodian located at Florence, South Carolina, or at such other office as shall be specified to the Administrative Agent set forth and the Collateral Manager by the Collateral Custodian in Section 5.5(c)a written notice delivered at least 30 days (or such shorter notice period as consented to by the Administrative Agent) prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Borrower and its Affiliates and subsidiaries; provided that the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent and the Borrower.
(iv) On each Reporting DateThe Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Agent Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall provide a written report not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit M, which shall include an incumbency certificate for each authorized signer), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, including any rights arising with respect to Article VII. In the execution by event the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written Custodian receives instructions from the Administrative Agent as to the course of action desired by the Administrative Collateral Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or Borrower which conflict with any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may is hereby authorized to direct the Collateral Agent to take any such incidental action hereunder. With Custodian with respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder. With respect to such incidental actions, the Collateral Agent Custodian shall not be required to take make any independent determinations as to the taking of any such incidental action hereunder, but shall be required only to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon ‑201‑ the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply have declined to consent to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacityrelevant action.
Appears in 1 contract
Sources: Loan and Servicing Agreement (MSD Investment Corp.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.511.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “"Review Criteria”"). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Agent’s Custodian's obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E J) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s Custodian's delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral Agent’s Custodian's duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals in physical form shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Custodian located at The Depository Trust Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ – ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: BNY Mellon/Branch Deposit Department, or at such other office as shall be specified to the Administrative Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each Reporting Datemonth, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (AG Twin Brook Capital Income Fund)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.514.5, the Collateral Agent Document Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Document Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loan” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistChecklist (the “Review Period”), the Collateral Agent Document Custodian shall review the Required Loan Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear an original or a reproduction of such signature and (B) such Required Loan Documents have been executed by each party thereto and have no missing or mutilated pages, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to review of the applicable loan note, the related initial Loan balance listed when entered into or obtained by the Borrower, Loan identification number and Obligor name with respect to such Loan is referenced on the related Loan Tape Checklist and is not a duplicate Loan (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentDocument Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentDocument Custodian, the Collateral Manager Servicer shall provide to the Collateral Agent Document Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral AgentDocument Custodian) listing Loan Identification Number, as applicablename of Obligor, of and initial Loan balance and the related Loan Checklist per file that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the initial Loan balance when entered into or obtained by the Borrower with respect to each related Loan. If, at the conclusion of such review, the Document Custodian shall determine that any Review Criteria are not satisfied, the Document Custodian shall within one (1) Business Day notify the Borrower, the Administrative Agent and the Servicer of such determination and provide the Servicer and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Servicer shall have ten (10) Business Days to correct any non-compliance with any Review Criteria as stated in the preceding sentence. If the Servicer has not notified the Document Custodian, the Borrower and the Administrative Agent of a cure, such Loan shall cease to be an Eligible Loan until such non-compliance is cured. After the Review Period, the Document Custodian shall execute and deliver to the Servicer and the Administrative Agent a certification substantially in the form attached hereto as Exhibit J, including an attached exception report. In addition, if requested in writing in the form of Exhibit E by the Servicer and approved by the Administrative Agent within ten (10) Business Days of the Document Custodian’s delivery of such report, the Document Custodian shall return the Required Loan Documents for any Loan which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Document Custodian shall not have any responsibility for reviewing any Underlying Instruments. Notwithstanding anything herein to the contrary, the Collateral AgentDocument Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent is unable to confirm the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Document Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Document Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral AgentDocument Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are (i) originals or physical copies shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Agent set forth Document Custodian located at 1▇▇▇ ▇▇▇▇ ▇▇▇, Florence, SC 29501, or at such other office as shall be specified to the Administrative Agent, the Borrower, and the Servicer by the Document Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change and (ii) in electronic form (it being agreed that Required Loan Documents shall only be permitted to be delivered in electronic form with respect to Noteless Loans) shall be held electronically in PDF form. All Required Loan Documents that are originals or physical copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Document Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentDocument Custodian.
(iv) On each Reporting monthly date referred to in clause (ix) of the definition of “Measurement Date” following the commencement of the Revolving Period, the Collateral Agent Document Custodian shall provide a written report to the Administrative Agent Agent, the Borrower, and the Collateral Manager Servicer (in a form mutually agreeable acceptable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it the Document Custodian holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be including an Eligible Loan until such non-compliance is curedexception report.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver Notwithstanding any Required Loan Documents provision to the Administrative Agent as requested contrary elsewhere in order to take the Transaction Documents, the Document Custodian shall not have any action that the Administrative Agent deems necessary fiduciary relationship with any party hereto or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager in its capacity as such, and no implied covenants, functions, obligations or the Borrower which conflict with any instructions received by the Administrative Agentresponsibilities shall be read into this Agreement, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to or otherwise exist against the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoDocument Custodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action other parties hereto that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them Document Custodian shall not be required to exercise any discretion hereunder and shall have no investment or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabovemanagement responsibility. Nothing in this clause The Document Custodian shall not be deemed to relieve assume any obligations or liabilities of the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the CollateralServicer hereunder or under any other Transaction Document.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xvvi) The Administrative Agent may direct the Collateral Agent Document Custodian to take any such action incidental action to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Document Custodian hereunder, the Collateral Agent Document Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that, the Document Custodian shall not be required to take any action hereunder at the request of the Administrative Agent or otherwise if the taking of such action, in the reasonable determination of the Document Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Document Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Document Custodian requests the consent of the Administrative Agent and the Document Custodian does not receive a consent (either positive or negative) from the Administrative Agent within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to have declined to consent to the relevant action.
(xvivii) Nothing herein The Document Custodian shall prevent not be liable for any action taken, suffered or omitted by it in accordance with the Collateral Agent request or any of its Affiliates from engaging in other businesses or from rendering services direction of any kind to any Person.
(xvii) Concurrently herewithSecured Party, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for extent that this Agreement provides such Secured Party the right to so direct the Document Custodian. The Document Custodian shall not be deemed to have notice or knowledge of any actions taken matter hereunder, including an Event of Default, unless a Responsible Officer of the Document Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityDocument Custodian.
Appears in 1 contract
Sources: Loan, Security and Servicing Agreement (Monroe Capital Income Plus Corp)
Duties. On or before From the initial Funding Closing Date until Restatement Date, and the Collateral Custodian was in compliance with its custodial obligations under the Original Agreement in all material respects. From the Restatement Date until its removal pursuant to Section 7.512.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been properly executed by each party thereto and have no missing or mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made as listed on the Loan Asset Checklist, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Collateral Agent without any missing pages or sections Underlying Collateral, and (D) the related original balance (based on a comparison to the note note, assignment agreement or assignment agreementparticipation interest documentation, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E M) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further provided, further, that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Agent set forth Custodian in Section 5.5(c)11.02, or at such other office as shall be specified to the Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days (or such shorter notice period as consented to by the Agent) prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided, however, that the Collateral Custodian shall segregate any commingled files upon written request of the Agent and the Borrower.
(iv) On each Reporting Datethe 12th calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent (who will provide each Lender with a copy promptly upon receipt thereof) and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Trustee and deliver any Required Loan Documents to the Administrative Trustee or Agent (pursuant to a written request in the form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager Trustee or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitationincluding any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Trustee, the execution Servicer or the Borrower which conflict with any instructions received by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this AgreementAgent, the Collateral Agent is required to decide between alternative courses of action, Custodian shall rely on and follow the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired given by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xiii) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, the Administrative Agent directs shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent is authorized within 10 Business Days of its receipt of such request, then the Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken written notice thereof is received by the Collateral Custodian.
(iv) The parties acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the Sale Agreement USA PATRIOT Act and its implementing regulations, the Securities Account Control Agreement Collateral Custodian in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Custodian. The Borrower hereby agrees that it shall provide the Collateral Custodian with such capacityinformation as it may request including, but not limited to, the Borrower’s name, physical address, tax identification number and other information that will help the Collateral Custodian to identify and verify the Borrower’s identity (in certain circumstances, the beneficial owners thereof) such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Appears in 1 contract
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the The Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured PartiesBorrower, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Portfolio Asset Files and the Required Loan Portfolio Documents delivered by the Portfolio Asset Servicer and Borrower pursuant to and Section 5.01(g) in accordance with the terms and conditions of this Agreement, all for the benefit of the Administrative Agent on behalf of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistPortfolio Documents, the Collateral Agent Custodian shall review the such Required Loan Portfolio Documents delivered to it to confirm that (A) the Outstanding Principal Balance and the Obligor name on the applicable Loan Agreement and any related promissory note matches that on the Portfolio Asset Schedule and the Portfolio Asset number on the applicable Loan ChecklistAgreement matches that on the Portfolio Asset Schedule, as applicable, and to the extent such Loan Agreement and related promissory note have been delivered to the Collateral Custodian, (B) such Required Loan Portfolio Documents have been executed by each party thereto (either an original or a copy, as indicated on the related Portfolio Asset Checklist), appear to relate to such Portfolio Asset and have no missing or mutilated pages, (C) each item listed in filed copies of the Loan UCC financing statements and other filings identified on the related Portfolio Asset Checklist has been provided to the Collateral Agent without any missing pages or sections are included and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance if listed on the Loan Tape related Portfolio Asset Checklist, a copy of an Insurance Policy or insurance certificate with respect to any real or personal property constituting the Underlying Collateral for such Portfolio Asset is included (such the items (A) through (D) to be reviewed pursuant to this sentence, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents a Portfolio Asset File hereunder to the Collateral AgentCustodian, the Collateral Manager Portfolio Asset Servicer shall provide to the Collateral Agent Custodian an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Portfolio Asset Checklist that which contains a list of all related Required Loan Documents and whether they require original signaturesthe Portfolio Asset information with respect to the Portfolio Asset File being delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents Portfolio Asset File shall be limited to reviewing such Required Loan Documents the Review Criteria and based on the information provided on the Loan related Portfolio Asset Checklist. If, at the conclusion of such review, the Collateral Agent is unable Custodian shall determine that (A) the Outstanding Principal Balance of the Portfolio Asset with respect to confirm which it has received the Review CriteriaPortfolio Asset File does not match the Outstanding Principal Balance set forth on the Portfolio Asset Schedule, the Collateral Agent Custodian shall within one (1) Business Day notify execute and deliver to the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review CriteriaPortfolio Asset Servicer, the Collateral Agent shall promptly notify the Collateral Manager, Borrower Facility Servicer and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing a certification (the “Collateral Custodian Certification”) substantially in the form of attached hereto as Exhibit E by M, including an attached exception report (the Collateral Manager and approved by the Administrative Agent within “Exception Report”). The Borrower shall have ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time periodIn addition, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as if requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or writing by the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments or Portfolio Asset Servicer in accordance with Section 2.7 9.08 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent approved by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Administrative Agent (acting at the written direction of the Administrative AgentMajority Lenders), within ten (10) as its agent to execute Business Days of the Collateral Custodian’s delivery of the Collateral Custodian Certification and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitationrelated Exception Report, the execution by Collateral Custodian shall return any Portfolio Asset File which fails to satisfy a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent as secured party/assignee of Custodian shall not have any responsibility for reviewing any Portfolio Asset File. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Portfolio Documents shall be limited to reviewing such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any Required Portfolio Documents based on the information provided on the Portfolio Asset Checklist.
(ii) In taking and retaining custody of the Loans now existing or hereafter arisingelectronic copies of the Portfolio Asset Files, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause Collateral Custodian shall be deemed to relieve be acting as the Borrower or the Collateral Manager of their respective obligations to protect the interest agent of the Collateral Administrative Agent (for the benefit on behalf of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, ; provided that (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect Custodian makes no representations as to the Collateral existence, perfection or priority of any Lien on the Portfolio Asset Files or the instruments therein and (B) all calculations made by the Collateral Agent pursuant Custodian’s duties shall be limited to this Section 7.2(bthose expressly contemplated herein.
(iii) using information that is not routinely maintained by Any electronic copies of the Portfolio Asset Files shall be electronically stored at the locations specified as the address of the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor Custodian on Schedule IV or at such other locations as shall be made using such amounts as provided by specified to the Administrative Agent, Facility Servicer and the Borrower or by the Collateral Manager Custodian in a written notice delivered at least 30 days prior to such change. Any electronic copies of the Portfolio Asset Files shall be electronically filed together with an appropriate identifier and maintained in such a manner so as to permit retrieval and access. The Collateral Custodian shall segregate the electronic copies of the Portfolio Asset Files and will not commingle such electronic copies of the Portfolio Asset Files with any other files of the Collateral Agent.
(xv) The Administrative Agent may direct Custodian; provided the Collateral Agent to take Custodian shall segregate any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) commingled files upon the direction written request of the Administrative Agent.
(xviiv) Nothing herein shall prevent On each Reporting Date following the first delivery of Required Portfolio Documents to the Collateral Agent or any of its Affiliates from engaging Custodian, the Collateral Custodian shall provide a written report to the Administrative Agent, the Borrower and the Lenders (in other businesses or from rendering services of any kind a form mutually agreeable to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs (at the Collateral Agent written direction of the Majority Lenders) and the Collateral Agent is authorized to enter into the Sale Agreement Custodian) identifying each Portfolio Asset for which it holds a Portfolio Asset File and the Securities Account Control Agreementapplicable Review Criteria that any Portfolio Asset File fails to satisfy. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein The Borrower shall apply have ten (10) Business Days after notice or knowledge thereof to the Collateral Agent for correct any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacitynon-compliance with any Review Criteria.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Business Development Corp of America)
Duties. On or before the initial Funding Date, and until Until its removal pursuant to Section 7.55(e), the Collateral Agent Custodian shall perform, perform on behalf of the Administrative Agent and the Secured PartiesLenders, the following duties and obligations:
(iA) The Collateral Agent Custodian shall take and retain custody of the Required Loan Asset Documents delivered by the Borrower pursuant to and any Pledgor in accordance with the terms and conditions of this Pledge Agreement, all for the benefit of the Secured PartiesLenders and subject to the Lien thereon in favor of the Administrative Agent as agent for the Lenders. Within five (5) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistAsset Documents, the Collateral Agent Custodian shall review the such Required Loan Asset Documents delivered to it to confirm that (A) such Required Asset Documents, to the Obligor name matches extent indicated on the Loan Asset Checklist, (B) such Required Loan Documents have been executed by each party thereto and and, on their face, have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) are contained in the Asset File and have a file stamp set forth thereon, (C) each item listed a certificate of insurance (as set forth on the Asset Checklist) is contained in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections Asset File, and (D) the related original balance (based on a comparison Original Principal Balance, Asset identification number and Obligor name with respect to the note or assignment agreement, as applicable) such Asset is greater than or equal to the applicable loan balance listed referenced on the Loan Tape related Asset List and is not a duplicate Asset (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Asset Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL or a comparable format acceptable to format) that contains the Collateral Agent, as applicable, of Asset Checklist and the related Loan Checklist Asset List that otherwise contains a list of all related Required Loan Documents and whether they require original signaturesthe Asset identification number, the Loan identification number Original Principal Balance and the name of the Obligor with respect to each related LoanAsset. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at At the conclusion of such review, the Collateral Agent is unable to confirm Custodian shall deliver a receipt in the Review Criteria, the Collateral Agent shall within one (1) Business Day notify the Collateral Manager form attached hereto as Exhibit 5(b). The Servicer and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager related Pledgor shall have twenty (20) Business Days use commercially reasonable efforts to correct any non-compliance with any a Review CriteriaCriteria identified on such receipt. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review CriteriaTwo times each calendar month, the Collateral Agent Custodian shall promptly notify deliver to the Collateral Manager, Borrower Servicer and the Administrative Agent an exception report identifying, with particularity, each Asset and each of the applicable Review Criteria that such continued non-compliance and such Loan shall cease Asset fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Agent or as otherwise directed by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such exception report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrowerapplicable Person. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Asset Documents.
(iiB) In taking and retaining custody of the Underlying InstrumentsRequired Asset Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured PartiesAdministrative Agent and the Lenders; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Asset Documents or the instruments therein; and provided further that that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iiiC) All Required Loan Asset Documents that are originals kept by the Collateral Custodian shall be kept in fire resistant vaults, rooms or cabinets at the offices of locations specified on Schedule 5(b) attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Agent set forth Custodian in Section 5.5(c)a written notice delivered at least forty-five (45) days prior to such change. All Required Loan Asset Documents shall be placed together with an appropriate identifying label electronically tracked and maintained in such a manner so as to permit retrieval and access. The All notes and Loan Registers included in the Pledged Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with be clearly electronically or physically segregated from any other files of documents or instruments maintained by the Collateral Agent.
(iv) On each Reporting Date, Custodian. At the Collateral Agent shall provide a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any reasonable request of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent Initial Borrower shall rely on promptly (and follow the instructions given by in any event within ten (10) Business Days) deliver to the Administrative AgentAgent copies of all Asset Files that have not been segregated.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xivD) In performing its duties, (A) the Collateral Agent Custodian shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information similar collateral that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts it holds as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agentcollateral custodian.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Pledge Agreement (Capitalsource Inc)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.513.05 or its resignation pursuant to Section 13.07, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (identified on the Loan Asset Checklist) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent an electronic Custodian a hard copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E M) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that provided, further, that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Agent set forth Custodian in Section 5.5(c)12.02, or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to NF and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent and the Borrower.
(iv) On each Reporting Datethe 12th calendar day of every Month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VIII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within 10 Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 1 contract
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.513.5 and Section 13.6, the Collateral Agent Document Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Document Custodian shall take and retain custody of the Required Loan Portfolio Asset Documents delivered by the Borrower pursuant to and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Underlying Instruments, the Required Loan Portfolio Asset Documents and and/or the related Loan Portfolio Asset Checklist, the Collateral Agent Document Custodian shall review the Required Loan Portfolio Asset Documents delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document may contain a copy of a signature, that such copies appear to bear a reproduction of such signature and (B) based on a review of the applicable note, if any, the related original Loan balance when entered into or obtained by the Borrower, Loan identification number and Obligor name with respect to such Required Loan Documents have been executed by each party thereto Portfolio Asset is referenced on the related Portfolio Asset List and have no missing or mutilated pagesis not a duplicate Portfolio Asset, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Portfolio Asset Tape (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentDocument Custodian, in connection with each delivery of Required Loan Portfolio Asset Documents hereunder to the Collateral AgentDocument Custodian, the Collateral Manager shall provide to the Collateral Agent Document Custodian an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of Document Custodian) or the related Loan Portfolio Asset Checklist that contains a list of all related Required Loan Portfolio Asset Documents and whether they require original signatures, the Loan identification number and the name of the Obligor and the original Loan balance when entered into or obtained by the Borrower with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent Document Custodian shall determine that (1) the original Loan balances of the Loans with respect to which it has received Underlying Instruments is unable to confirm not the Review Criteriasame as the Loan balances as set forth on the related electronic file or the Portfolio Asset Checklist, as applicable, the Document Custodian shall immediately notify the Administrative Agent and the Collateral Agent Manager of such discrepancy, and (2) any Review Criteria is not satisfied, the Document Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-non- complying Loans Portfolio Assets and the applicable Review Criteria that they fail to satisfysatisfy (the “Exception Report”). The Collateral Manager shall have twenty (20) Business Days after receipt of any Exception Report to correct any non-compliance with any Review Criteria. If after the conclusion of such time period The Document Custodian shall have no duty to monitor the Collateral Manager has still not cured any Manager’s compliance except to provide an updated Exception Report promptly upon the Administrative Agent’s written request (which request may be in the form of an email). If and to the extent such non-compliance by a Loan with any Review Criteriahas not been cured within such time period, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan Portfolio Asset shall cease to be an Eligible Loan Portfolio Asset until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentDocument Custodian’s delivery of such reportException Report, the Collateral Agent Document Custodian shall return the Underlying Instruments and the Required Loan Portfolio Asset Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Document Custodian shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying InstrumentsInstruments and the Required Portfolio Asset Documents, the Collateral Agent Document Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Document Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral AgentDocument Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Underlying Instruments and Required Loan Portfolio Asset Documents that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent Document Custodian set forth in Section 5.5(c). All Underlying Instruments and Required Loan Portfolio Asset Documents that are originals or copies shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Underlying Instruments and Required Portfolio Asset Documents that are delivered to the Document Custodian in electronic format shall be saved onto disks and/or onto the Document Custodian’s secure computer system, and maintained in a manner so as to permit retrieval and access. The Collateral Agent Document Custodian shall segregate the Underlying Instruments and the Required Loan Portfolio Asset Documents on its inventory system and will not commingle the physical Underlying Instruments or Required Loan Portfolio Asset Documents with any other files of the Collateral AgentDocument Custodian.
(iv) On each Reporting Date, the Collateral Agent Document Custodian shall provide a written report any Exception Reports to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is curedManager.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Loan and Security Agreement (New Mountain Guardian IV BDC, L.L.C.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.5, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to and the definition of “Eligible Loans” in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. With respect to each delivery of Required Loan Documents, the Borrower shall provide or cause to be provided a related Loan Checklist to the Collateral Custodian with respect to such Required Loan Documents that are being delivered. Within five (5) Business Days of its receipt of any Required Loan Documents Underlying Instruments and the related Loan Checklist, the Collateral Agent Custodian shall review the Required Loan Documents (as identified on the related Loan Checklist) delivered to it to confirm that (A) if the Obligor name matches files delivered per the Loan Checklistfollowing sentence indicate that any document must contain an original signature, each such document appears to bear the original signature, or if the file indicates that such document must contain a copy of a signature, that such copies appear to bear a reproduction of such signature and (B) based on a review of the applicable note, the related original Loan balance, Loan identification number and Obligor name with respect to such Required Loan Documents have been executed by each party thereto is referenced on the related Loan List and have no missing or mutilated pagesis not a duplicate Loan, (C) each item listed in the Loan Checklist has been provided to the Collateral Agent without any missing pages or sections and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (DB) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents Underlying Instruments hereunder to the Collateral AgentCustodian, the Collateral Manager shall provide to the Collateral Agent Custodian a Loan Checklist in the form of an electronic copy file (in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Checklist Custodian) that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number number, the original principal balance of such Loan and the name of the Obligor and the original Loan balance with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (1) the original Loan balances of the Loans with respect to which it has received Underlying Instruments is unable to confirm less than as set forth on the Review Criteriaelectronic file, the Collateral Custodian shall immediately notify the Administrative Agent and the Collateral Manager of such discrepancy, and (2) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower of such determination and provide the Collateral Manager and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager shall have twenty (20) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-non- compliance by a Loan with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, the Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing in the form of Exhibit E determination by the Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s delivery of such report, the Collateral Agent shall return the Required Loan Documents for any Loan which fails to satisfy any Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying Instruments, the Collateral Agent shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments or the instruments therein; and provided further that the Collateral Agent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices of the Collateral Agent set forth in Section 5.5(c). All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On each Reporting Date, the Collateral Agent shall provide providing a written report to the Administrative Agent and the Collateral Manager (in a form mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time periodpersons identifying, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.with
Appears in 1 contract
Sources: Loan and Security Agreement (New Mountain Guardian IV BDC, L.L.C.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.511.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a hard copy (which may be preceded by an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agentcopy, as applicable, ) of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E J) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Custodian located at 4▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other office as shall be specified to the Administrative Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least thirty (30) days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Originator and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each Reporting Datemonth, the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(vi) If, in performing its duties under this Agreement, the Collateral Custodian is required to decide between alternative courses of action, the Collateral Custodian may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Custodian does not receive such instructions within two (2) Business Days after it has requested them, the Collateral Custodian may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent Custodian shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions. The Collateral Custodian shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(i) The Collateral Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has actual knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.513.05 or its resignation pursuant to Section 13.07, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and a ▇▇▇▇▇▇ electronic copy of the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (identified on the Loan Asset Checklist) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in 179 DMSLIBRARY01\32370595.v1 connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent an Custodian a ▇▇▇▇▇▇ electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty (20) five Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E M) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) 10 Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that provided, further, that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the offices locations specified on the address of the Collateral Agent set forth Custodian in Section 5.5(c)12.02, or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to CGMSTCG and its Affiliates and subsidiaries; provided, however, the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent and the Borrower.
(iv) On each Reporting Datethe 12th calendar day of every Month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Agent Custodian shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.180 DMSLIBRARY01\32370595.v1
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver Notwithstanding any Required Loan Documents provision to the Administrative Agent as requested contrary elsewhere in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative AgentTransaction Documents, the Collateral Agent Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond have any fiduciary relationship with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other any party hereto or any Secured Party further authorizes the Collateral Agent to take such action in its capacity as agent on its behalf such, and to exercise such powers under no implied covenants, functions, obligations or responsibilities shall be read into this Agreement and Agreement, the other Transaction Documents as are expressly delegated to or otherwise exist against the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental theretoCustodian. In furtherance, and without Without limiting the generality of the foregoing, each Secured Party it is hereby appoints expressly agreed and stipulated by the other parties hereto that the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent Custodian shall not be required to take exercise any such incidental action hereunder, but shall be required to act or to refrain from acting (discretion hereunder and shall be fully protected in acting have no investment or refraining from acting) upon the direction of the Administrative Agentmanagement responsibility.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 7.58.5, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents Files delivered by the Borrower pursuant to and Section 3.2 hereof in accordance with the terms and conditions of this Agreement, as bailee for the purposes of the relevant UCC (a “Bailee”), all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent, as agent for the Secured Parties. Within five three (53) Business Days of its receipt of any Required Loan Documents and the related Loan ChecklistFile, the Collateral Agent Custodian shall review the such Required Loan Documents delivered to it File to confirm that (A) the Obligor name matches the Loan Checklist, (B) loan documents and instruments in such Required Loan Documents File have been properly executed by each party thereto and have no missing or mutilated pages, (B) there is evidence that UCC and other filings (to extent identified on the related Receivable Checklist as being required by the Required Loan File) have been made, (C) each item if listed in on the Loan Checklist has been provided Receivable Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Collateral Agent without any missing pages or sections Related Property, and (D) the related original balance Outstanding Receivable Balance, loan/lease number, maturity date identified in the Underlying Instruments, FICO score of the related Obligor and Obligor name and mailing address with respect to such Receivable is referenced on the related Receivable Checklist and is not a duplicate Receivable (based on a comparison to the note or assignment agreement, as applicableloan/lease number) is greater than or equal to the applicable loan balance listed on the Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents File hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian an electronic copy file (in EXCEL Microsoft EXCEL® or a comparable format acceptable to format) that contains the Collateral AgentReceivable number, as applicableObligor name, of original Outstanding Receivable Balance and the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the Loan identification number and the name of the Obligor with respect to each related Loan. Notwithstanding anything herein to the contrary, the Collateral Agent’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Receivable Checklist. If, at At the conclusion of such review, the Collateral Custodian shall deliver to the Servicer, the Borrower and the Administrative Agent is unable to confirm a collateral receipt in the Review Criteriaform of Exhibit L attached hereto (a “Collateral Receipt”). If any Collateral Receipt discloses any deficiencies (a “Deficiency”) in any of the Required Loan Files, the Collateral Agent Custodian shall within one (1) Business Day promptly notify the Collateral Manager Administrative Agent and the Borrower Servicer of such determination Deficiency and provide them with an exception report specifying the Collateral Manager Receivables which have a Deficiency and the Borrower with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty fifteen (2015) Business Days to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager Servicer has still not cured any non-compliance by a Loan Receivable with any Review Criteria, the Collateral Agent Custodian shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance determination by providing an updated exception report to such Persons identifying, with particularity, each Receivable and each of the applicable Review Criteria that such Loan shall cease Receivable fails to be an Eligible Loan until such non-compliance is curedsatisfy. In addition, if requested in writing in the form of Exhibit E by the Collateral Manager Servicer and approved by the Administrative Agent within ten fifteen (1015) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Receivable which fails to satisfy any a Review Criteria to the BorrowerBorrower or its designee. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing reviewing, inspecting or examining any Underlying InstrumentsRequired Loan File to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they are other than what they purport to be on their face.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Files, the Collateral Agent Custodian shall be deemed to be acting as the agent Bailee of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the enforceability of any Required Loan File documents or the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Files or the instruments therein; and provided further that the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents File documents that are originals or copies shall be kept in fire resistant vaultsfacilities in accordance with the Collateral Custodian’s customary standards for such custody, rooms or cabinets at the offices of locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent and the Servicer by the Collateral Agent set forth Custodian in Section 5.5(c)a written notice delivered at least forty-five (45) days prior to such change. All Required Loan Documents Files shall be placed together with an appropriate identifying label identified using a barcode system and maintained in such a manner so as to permit retrieval and access. The Collateral Agent shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Agent.
(iv) On the third Business Day of each Reporting Datemonth, the Collateral Agent Custodian shall provide to the Administrative Agent and the Servicer (in a written report form acceptable to the Administrative Agent and the Collateral Manager (Custodian) an updated list of Receivables in a form mutually agreeable to the Administrative Agent its possession and the Collateral Agent) identifying each Loan for which it holds Required Loan Documents and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is curedupdated exceptions report.
(v) The Collateral Agent agrees to cooperate with the Administrative Agent and deliver any Required Loan Documents to the Administrative Agent as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent Custodian shall comply with use the standard same degree of care set forth in Section 7.6(c) and the express terms of the Transaction Documents attention as it employs with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information similar collateral that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts it holds as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agentcollateral custodian for others.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent hereunder, the Collateral Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent the Collateral Agent or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(xvii) Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacity.
Appears in 1 contract
Sources: Revolving Credit Agreement (Sparta Commercial Services, Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.512.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within five (5) Business Days of its receipt of any Required Loan Documents Documents, the related Loan Tape and the related Loan Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Checklist) and have no missing or mutilated pagespages (in the case of electronic copies, “mutilated” shall mean that the pages are illegible), (B) UCC and other filings required under the applicable Loan Agreements have been provided as listed on the Loan Checklist, (C) each item if listed in on the Loan Checklist has been provided Checklist, a copy of an Insurance Policy with respect to any real or personal property constituting the Underlying Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan number and Obligor name, as applicable, with respect to such Loan is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent Custodian a copy (which may be an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, copy) of the related Loan Checklist that which contains a list of all related the Loan information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related such Loan. Notwithstanding anything herein to the contrary, the Collateral AgentCustodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan ChecklistChecklist and the Collateral Custodian shall be under no duty or obligation to inspect, review or examine any such documents, instruments or certificates to independently determine that they are genuine, enforceable, duly authorized or appropriate for the represented purpose, any assignment or endorsement is in proper form, or any document is other than what it purports to be on its face. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (i) the original balance of the Loan with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Tape, the Collateral Custodian shall notify the Facility Agent and the Servicer of such discrepancy within one (1) Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested directed in writing (in the form of Exhibit E M) by the Collateral Manager Servicer and approved by the Administrative Facility Agent within ten (10) Business Days of the Collateral AgentCustodian’s delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent Custodian shall not have any responsibility for reviewing any Underlying InstrumentsRequired Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Checklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further that that, the Collateral AgentCustodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals required to be kept in physical form shall be kept in fire resistant vaults, rooms or cabinets at the offices office of the Collateral Custodian located at Florence, South Carolina, or at such other office as shall be specified to the Facility Agent set forth and the Servicer by the Collateral Custodian in Section 5.5(c)a written notice delivered at least 30 days (or such shorter notice period as consented to by the Facility Agent) prior to such change. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Borrower and its Affiliates and subsidiaries; provided that the Collateral Custodian shall segregate any commingled files upon written request of the Facility Agent and the Borrower.
(iv) On each Reporting DateThe Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the Collateral Agent shall provide a written report to the Administrative Agent and other Transaction Documents or otherwise exist against the Collateral Manager (in a form mutually agreeable to Custodian. Without limiting the Administrative Agent generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Agent) identifying each Loan for which it holds Required Loan Documents Custodian shall not be required to exercise any discretion hereunder and any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice no investment or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is curedmanagement responsibility.
(vi) The Collateral Agent Custodian agrees to cooperate with the Administrative Facility Agent and the Collateral Agent and deliver any Required Loan Documents to the Administrative Collateral Agent or Facility Agent (pursuant to a written request in the form of Exhibit M), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Facility Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitationincluding any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the execution Servicer or the Borrower which conflict with any instructions received by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this AgreementFacility Agent, the Collateral Custodian shall rely on and follow the instructions given by the Facility Agent is required to decide between alternative courses of action, (provided that the Collateral Agent may request written instructions from the Administrative Agent as to the course Custodian shall provide notice of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses conflicting instructions to each of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager Servicer and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the CollateralCollateral Agent).
(xivii) In performing its duties, (A) The Facility Agent is hereby authorized to direct the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents Custodian with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, the Borrower or the Collateral Manager to the Collateral Agent.
(xv) The Administrative Agent may direct the Collateral Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder. With respect to such incidental actions, the Collateral Agent Custodian shall not be required to take make any independent determinations as to the taking of any such incidental action hereunder, but shall be required only to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Facility Agent.
(xvi) Nothing herein shall prevent ; provided that the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, the Administrative Agent directs shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Facility Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Facility Agent is authorized within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to enter into the Sale Agreement and the Securities Account Control Agreement. For the avoidance of doubt, all the Collateral Agent’s rights, protections and immunities provided herein shall apply have declined to consent to the Collateral Agent for any actions taken or omitted to be taken under the Sale Agreement and the Securities Account Control Agreement in such capacityrelevant action.
Appears in 1 contract
Sources: Loan and Security Agreement (North Haven Private Income Fund LLC)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 7.511.05, the Collateral Agent Custodian shall perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Agent Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a) and Section 3.04(b) hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties. Within (x) in the case of the delivery of Required Loan Documents relating to not more than ten (10) Loan Assets, five (5) Business Days, or (y) in the case of the delivery of Required Loan Documents relating to more than ten (10) Loan Assets, six (6) Business Days plus an additional Business Day for every two (2) additional sets of Loan Assets in excess of ten (10) Loan Assets to which the Required Loan Documents relate, and, in each case, of its receipt of any Required Loan Documents and Documents, the related Loan Asset Schedule and the Loan Asset Checklist, the Collateral Agent Custodian shall review the Required Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Required Loan Documents have been executed by each party thereto (either an original or a copy, as indicated on the Loan Asset Checklist) and have no missing or mutilated pages, (B) filed stamped copies of the UCC and other filings (required by the Required Loan Documents) are included, (C) each item if listed in on the Loan Checklist has been provided Asset Checklist, a copy of an Insurance Policy (or evidence thereof) with respect to any real or personal property constituting the Related Collateral Agent without any missing pages or sections is included, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable) ), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is greater than or equal to the applicable loan balance listed referenced on the related Loan Tape Asset Schedule (such items (A) through (D) collectively, the “"Review Criteria”"). In order to facilitate the foregoing review by the Collateral AgentCustodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral AgentCustodian, the Collateral Manager Servicer shall provide to the Collateral Agent an electronic copy in EXCEL or a comparable format acceptable to the Collateral Agent, as applicable, of Custodian the related Loan Asset Checklist that which contains a list of all related the Loan Asset information with respect to the Required Loan Documents and whether they require original signaturesbeing delivered, the Loan identification number and the name of the Obligor with respect to each related Loansuch Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Agent’s Custodian's obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Agent Custodian shall determine that (I) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is unable to confirm less than as set forth on the Review CriteriaLoan Asset Schedule, the Collateral Custodian shall notify the Administrative Agent and the Servicer of such discrepancy within one (1) Business Day, or (II) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Collateral Manager and the Borrower Servicer of such determination and provide the Collateral Manager and the Borrower Servicer with a list of the non-complying Loans Loan Assets and the applicable Review Criteria that they fail to satisfy. The Collateral Manager Servicer shall have twenty five (205) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. If after the conclusion of such time period the Collateral Manager has still not cured any non-compliance by a Loan with any Review Criteria, the Collateral Agent shall promptly notify the Collateral Manager, Borrower and the Administrative Agent of such continued non-compliance and such Loan shall cease to be an Eligible Loan until such non-compliance is cured. In addition, if requested in writing (in the form of Exhibit E J) by the Collateral Manager Servicer and approved by the Administrative Agent within ten (10) Business Days of the Collateral Agent’s Custodian's delivery of such report, the Collateral Agent Custodian shall return the Required Loan Documents for any Loan Asset which fails to satisfy any a Review Criteria to the Borrower. Other than the foregoing, the Collateral Agent shall not have any responsibility for reviewing any Underlying Instruments.
(ii) In taking and retaining custody of the Underlying InstrumentsRequired Loan Documents, the Collateral Agent Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Agent Custodian makes no representations as to the existence, perfection or priority of any Lien on the Underlying Instruments Required Loan Documents or the instruments therein; and provided further provided, further, that the Collateral Agent’s Custodian's duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Loan Documents that are originals in original form shall be kept in fire resistant vaults, rooms or cabinets at the offices address of the Collateral Custodian as may be specified by the Collateral Custodian to the Administrative Agent set forth in Section 5.5(c)and the Servicer from time to time. Prior to sending any original Required Loan Documents to the Collateral Custodian, the Borrower shall confirm the address to which such Required Loan Documents should be sent with the Collateral Custodian. All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Agent Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral AgentCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) On the Reporting Date of each Reporting Datemonth, the Collateral Agent Custodian, shall provide a written report to the Administrative Agent and the Collateral Manager Servicer (in a form mutually agreeable to the Administrative Agent and the Collateral AgentCustodian) identifying each Loan Asset for which it holds Required Loan Documents and any the applicable Review Criteria that each such any Loan Asset fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to be an Eligible Loan until such non-compliance is cured.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall not have any fiduciary relationship with any party hereto or any Secured Party in its capacity as such, and no implied covenants, functions, obligations or responsibilities shall be read into this Agreement, the other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the other parties hereto that the Collateral Custodian shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility.
(i) The Collateral Agent Custodian agrees to cooperate with the Administrative Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written request in the form of Exhibit J), as applicable, as requested in order to take any action that the Administrative Agent deems necessary or desirable in order to exercise or enforce any of the rights of a Secured Party hereunder. In the event the Collateral Agent receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Agent shall, promptly upon its actual receipt of a Collateral Management Report from the Collateral Manager on behalf of the Borrower, calculate the Borrowing Base and, if the Collateral Agent’s calculation does not correspond with the calculation provided by the Collateral Manager on such Collateral Management Report, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) Business Day of receipt by the Collateral Agent of such Collateral Management Report and the parties shall reconcile such discrepancy.
(vii) The Collateral Agent shall make payments in accordance with Section 2.7 and Section 2.8 and as otherwise expressly provided under this Agreement (the “Payment Duties”).
(viii) The Administrative Agent and each other Secured Party further authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Collateral Agent (acting at the direction of the Administrative Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Administrative Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Collateral Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or including any of the Loans now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. Nothing in this clause shall be deemed to relieve the Borrower or the Collateral Manager of their respective obligations to protect the interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, including to file financing and continuation statements in respect of the Collateral.
(ix) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Administrative Agent as to the course of action desired by the Administrative Agent. If the Collateral Agent does not receive such instructions within two (2) Business Days after its request therefor, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Collateral Agent shall be entitled to rely on the advice of legal counsel and independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database rights arising with respect to Article VII. In the event the Collateral (the “Collateral Database”), and update the Collateral Database daily for changes, including to reflect the sale or other disposition of the Collateral, based upon, and to the extent of, information furnished to the Collateral Agent by the Borrower as may be reasonably required by the Collateral Agent.
(xi) The Collateral Agent shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom and, on each Business Day, provide to the Collateral Manager daily reports reflecting such actions as of the close of business on the preceding Business Day.
(xii) The Collateral Agent shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Agent or as may be required by this Agreement, in each case as the Borrower, Collateral Manager or the Administrative Agent may reasonably request Custodian receives instructions from time to time.
(xiii) The Collateral Agent shall notify the Borrower, the Collateral Manager and the Administrative Agent upon receiving notices, reports or proxies or any other requests relating to corporate actions affecting the Collateral.
(xiv) In performing its duties, (A) the Collateral Agent shall comply with the standard of care set forth in Section 7.6(c) and the express terms of the Transaction Documents with respect to the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Agent, including EBITDA, Assigned Value and Unrestricted Cash of the Servicer or the Borrower which conflict with any Obligor shall be made using such amounts as provided instructions received by the Administrative Agent, the Borrower or Collateral Custodian shall rely on and follow the Collateral Manager to instructions given by the Collateral Administrative Agent.
(xvii) The Administrative Agent may direct the Collateral Agent Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Agent Custodian hereunder, the Collateral Agent Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent.
(xvi) Nothing herein shall prevent ; providedthat the Collateral Agent Custodian shall not be required to take any action hereunder at the request of the Administrative Agent, any Secured Party or any otherwise if the taking of its Affiliates from engaging such action, in other businesses or from rendering services the reasonable determination of the Collateral Custodian, (x) shall be in violation of any kind Applicable Law or contrary to any Person.
provisions of this Agreement or (xviiy) Concurrently herewith, shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Collateral Custodian requests the consent of the Administrative Agent directs the Collateral Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Administrative Agent is authorized within ten (10) Business Days of its receipt of such request, then the Administrative Agent shall be deemed to enter into have declined to consent to the Sale relevant action.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement and provides such Secured Party the Securities Account Control Agreement. For the avoidance of doubt, all right to so direct the Collateral Custodian, or the Administrative Agent’s rights. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, protections and immunities provided herein shall apply to including an Event of Default, unless a Responsible Officer of the Collateral Agent for any actions taken Custodian has knowledge of such matter or omitted to be taken under written notice thereof is received by the Sale Agreement and the Securities Account Control Agreement in such capacityCollateral Custodian.
Appears in 1 contract