Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations: (i) The Collateral Custodian shall take and retain custody of the Required Asset Documents delivered by the Seller pursuant to 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 Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents. (ii) In taking and retaining custody of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein. (iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian. (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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy. (vi) 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.
Appears in 7 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), 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 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody Custodian, as the duly appointed agent of the Required Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Documents Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered by to the Seller pursuant Collateral Custodian from time to Section 3.2 time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms and conditions of this Agreement, all for hereof. Promptly upon 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 Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Collateral Manager, the Agent and Required Asset Documents each Lender Agent.
(ii) With respect to confirm that (A) such each Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains is acting exclusively as the related Asset List or that otherwise contains the Asset identification number and the name custodian of the Obligor with respect Secured Parties, and has no instructions to each related Asset. If, at hold any Collateral Obligation File for the conclusion benefit of any Person other than the Secured Parties and undertakes to perform such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached hereto, in Annex A or at such other office offices as shall be specified to the Administrative Agent by and the Collateral Custodian Manager in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Agent, the Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a written report to Responsible Officer, in the Administrative Agent case of the Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Agent in writing, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 7 contracts
Sources: Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Blue Owl Capital Corp III)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.57.5, the Collateral Custodian Agent shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Agent shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 Asset DocumentsLoan Documents and the related Loan Checklist, the Collateral Custodian Agent shall review the related Collateral and Required Asset Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Collateral has Required Loan Documents have been properly executed by each party thereto and has have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect each item listed in the Loan Checklist has been provided to the Collateral Agent without any real missing pages or personal property constituting the Related Property, sections and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, Asset number and Obligor name with respect as applicable) is greater than or equal to such Asset is referenced the applicable loan balance listed on the related Asset List and is not a duplicate Asset Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral CustodianAgent, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral CustodianAgent, the Servicer Collateral Manager shall provide to the Collateral Custodian Agent an electronic file (copy in EXCEL or a comparable format) 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 related Asset List or that otherwise contains the Asset Loan identification number and the name of the Obligor with respect to each related AssetLoan. 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 Custodian shall determine that (i) Agent is unable to confirm the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic fileReview Criteria, 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 Servicer Collateral Manager and the Borrower of such determination and provide the Servicer Collateral Manager and the Borrower with a list of the non-complying Assets Loans and the applicable Review Criteria that they fail to satisfy. The Servicer Collateral Manager shall have five twenty (20) Business Days to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer Collateral Manager has still not cured any non-compliance by an Asset a Loan with a any Review Criteria, the Collateral Custodian Agent shall promptly notify the Seller Collateral Manager, Borrower and the Administrative Agent of such determination by providing a written report continued non-compliance and such Loan shall cease to be an Eligible Loan until such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfynon-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Servicer Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral CustodianAgent’s delivery of such report, the Collateral Custodian Agent shall return the Required Loan Documents for any Asset Loan which fails to satisfy a any Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian Agent shall not have any responsibility for reviewing any Required Asset DocumentsUnderlying Instruments.
(ii) In taking and retaining custody of the Required Asset DocumentsUnderlying Instruments, the Collateral Custodian Agent shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian Agent makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents Underlying Instruments or the instruments therein; and provided further that, that the Collateral CustodianAgent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by offices of the Collateral Custodian Agent set forth in a written notice delivered at least 45 days prior to such changeSection 5.5(c). All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Agent shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianAgent.
(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 Custodian Agent shall provide a written report to the Administrative Agent and the Servicer Collateral Manager (in a form acceptable mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Asset Loan for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable 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-complying Asset fails compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to satisfybe 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 Custodian Agent shall use comply with the same degree standard of care set forth in Section 7.6(c) and attention as it employs the express terms of the Transaction Documents with respect to similar the Collateral and (B) all calculations made by the Collateral Agent pursuant to this Section 7.2(b) using information that it holds 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 CustodianManager 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 The Servicer shall take or before cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the initial Funding DateCollateral Portfolio from time to time, and until its removal pursuant to Section 8.5all in accordance with Applicable Law, the Credit and Collection Policy (if Solar Senior Capital is the Servicer) and the Servicing Standard. Prior to the occurrence of a Servicer Replacement Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Custodian shall perform on behalf Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Administrative Agent and Servicer shall include the Secured Parties, the following duties and obligationsfollowing:
(i) The supervising the Collateral Portfolio, including communicating with Obligors, executing amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent and each Lender Agent (with a copy to the Collateral Agent and the Collateral Custodian shall take and retain custody the Backup Servicer) in respect of the Required servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent, the Backup Servicer or any Lender Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, each Lender Agent, the Collateral Agent, the Backup Servicer or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender Agent, Collateral Custodian, the Backup Servicer or the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset Documents delivered clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Seller Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to Section 3.2 in accordance with the terms and conditions of this Agreement;
(vi) notifying the Administrative Agent, all the Backup Servicer and each Lender Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) notifying the Administrative Agent and each Lender Agent of any change to the Credit and Collection Policy;
(viii) maintaining the perfected first priority security interest of the Collateral Agent, for the benefit of the Secured Parties and subject Parties, in the Collateral Portfolio;
(ix) maintaining the Loan Asset File with respect to the Lien thereon in favor Loan Assets included as part of the Administrative Agent Collateral Portfolio; provided that, so long as agent for the Secured Parties. Within five Business Days of its receipt Servicer is in possession of any Required Asset Loan Documents, the Collateral Custodian shall review the related Collateral and Servicer will hold such Required Asset Loan Documents to confirm that in a fireproof safe or fireproof file cabinet;
(Ax) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by directing the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder Agent to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In taking and retaining custody of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Servicing Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).2.04;
(vxi) On each Reporting Datedirecting the sale or substitution of Collateral Portfolio in accordance with Section 2.07;
(xii) providing assistance to the Borrower with respect to the Purchase and Contribution of and payment for the Loan Assets;
(xiii) instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(xiv) delivering the Loan Asset Files and the Loan Asset Schedule to the Collateral Custodian;
(xv) taking all actions necessary in establishing the Advance Date Assigned Value, and Updated Assigned Value in accordance with the terms hereof (including paying the compensation of the Nationally Recognized Valuation Firms); and
(xvi) complying with such other duties and responsibilities as may be required of the Servicer by this Agreement. It is acknowledged and agreed that in circumstances in which a Person other than the Borrower, the Collateral Custodian Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such performance would conflict with or result in a breach of any of the express terms of the related Loan Agreements; provided that the Servicer shall (a) provide a prompt written report notice to the Administrative Agent and the Backup Servicer upon becoming aware of such conflict or breach, (b) have determined that there is no other commercially reasonable performance that it could render consistent with the express terms of the Loan Agreements which would result in all or a form acceptable portion of the servicing duties being performed in accordance with this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the effects of such non-complying Assets performance including performing as much of the servicing duties as possible and performing such other commercially reasonable or similar duties consistent with the applicable Review Criteria that any non-complying Asset fails to satisfyterms of the Loan Agreements.
(vi) 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.
Appears in 5 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 From the Closing Date until its resignation pursuant to clause (n) below or before the initial Funding Date, and until its removal pursuant to Section 8.5clause (i) below, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i1) The Collateral Custodian shall take at all times hold all Custody Documents that constitute Escrowed Assignment Agreement Documents at one of its offices in the United States (for purposes hereof, the “Custodial Office”). The Collateral Custodian may change the Custodial Office at any time and retain custody from time to time upon notice to the Borrower, the Services Provider, the Collateral Agent and the Administrative Agent, provided that the replacement Custodial Office shall be an office of the Required Asset Collateral Custodian located in the United States. All Custody Documents delivered held by the Seller pursuant to 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 Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved be available for inspection by the Administrative Agent within ten Business Days upon prior written request and during normal business hours of the Collateral Custodian’s delivery . Any such inspection shall occur no earlier than five Business Days after such inspection is requested and the costs of such reportinspection shall be borne by the requesting party. The Administrative Agent (including its representatives and designees) may not request more than two inspections per year or, the Collateral Custodian shall return any Asset which fails to satisfy if an Event of Default has occurred and is continuing no more than once a Review Criteria month. Notwithstanding anything to the Seller. Other than the foregoingcontrary herein, the Collateral Custodian shall not be required to hold or accept custody of any Custody Document hereunder to the extent such Custody Document is of a type not approved for deposit into the custodial vault of the Collateral Custodian; provided that (1) the Collateral Custodian notifies the Services Provider and the Lenders prior to refusing to hold such documents and (2) the failure of the Collateral Custodian to accept and hold such documents shall not result in a default or an Event of Default with respect to the Borrower hereunder (provided that copies of such documents shall have any responsibility for reviewing any Required Asset Documentsbeen delivered by the Borrower to or otherwise made available to the Administrative Agent).
(ii2) In taking and retaining custody of the Required Asset any such Custody Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that (x) the Collateral Custodian makes no representations as to the existence, perfection perfection, enforceability or priority of any Lien on the Required Asset such Custody Documents or the instruments thereintherein or as to the adequacy or sufficiency of such Custody Documents; and provided further that, (y) the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii3) All Required Asset Document shall Custody Documents required to be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent held by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset The Collateral Custodian shall segregate such Custody Documents on its inventory system and will not commingle any such Custody Documents with any other files of the Collateral Custodian other than those, if any, relating to the Borrower and its Affiliates and Subsidiaries.
(4) 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 clearly segregated from any read into this Agreement, the other documents Transaction Documents or instruments maintained by 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 Custodian shall not be deemed to assume any obligations or liabilities of the Borrower or Services Provider hereunder or under any other Transaction Document.
(iv5) The Collateral Custodian shall make payments pursuant have no obligation to review or verify whether the Borrower or the Services Provider on its behalf has obtained and delivered (or made available to the terms Transaction Data Room) the necessary Diligence Information and other Custody Documents required for purchases of the Monthly Report in accordance with Section 2.9 Collateral Obligations hereunder, and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report have no obligation to maintain the Administrative Agent and Transaction Data Room on behalf of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) In performing its duties, Borrower unless otherwise expressly agreed by 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 Custodianin writing.
Appears in 5 contracts
Sources: Amendment No. 3 (Blue Owl Technology Finance Corp.), Credit Agreement (Blue Owl Technology Finance Corp.), Credit Agreement and Margining Agreement (Blue Owl Technology Income 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 8.512.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed and has have no missing or mutilated pages, (B) any UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been made, (C) if listed on the Loan Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Related PropertyUnderlying Collateral, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit N) by the Servicer 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 any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 Documentschecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretothe address of the Collateral Custodian 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 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every month (or if such day is not a Business Day, the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”next succeeding Business Day).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs with respect to similar Collateral collateral that it holds as collateral custodian for others.
(i) The Collateral Custodian agrees to cooperate with the Agent and the Trustee and deliver any Required Loan Documents to the 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 Trustee or the 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 any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Trustee, the Servicer or the Borrower which conflict with any instructions received by the Agent, the Collateral Custodian shall rely on and follow the instructions given by the Agent.
(ii) The Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties 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 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 within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the 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 provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral 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 From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.511.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 3.02 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 Asset Loan Documents, the related Loan Tape and a hard copy of the Loan Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth on to the Asset Checklistsextent required by the Required Loan Documents) have been madeare included, (C) if listed on the Loan Checklist, a copy of an Insurance Policy exists with respect to any real or personal property constituting the Related PropertyUnderlying Collateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, Asset as applicable), Loan number and Obligor name name, as applicable, with respect to such Asset Loan is referenced on the related Asset List and is not a duplicate Asset Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order Notwithstanding anything herein to facilitate the foregoing review by contrary, the Collateral Custodian, in connection with each delivery of ’s obligation to review the Required Asset Loan Documents hereunder shall be limited to reviewing such Required Loan Documents based on the Collateral Custodian, information provided on the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related AssetLoan Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Tape, the Collateral Custodian shall immediately notify the Administrative Agent and the Borrower and the Borrower Advisors of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer Borrower and the Borrower Advisors of such determination and provide the Servicer Borrower and the Borrower Advisors with a list of the non-complying Assets Loans and the applicable Review Criteria that they fail to satisfy. The Servicer Borrower shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit M) by the Servicer Borrower 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 any Asset Loan which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset 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 Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretothe address of the Collateral 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 a written notice delivered at least 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) 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 Custodian shall provide a written report to the Administrative Agent and the Servicer Borrower and the Borrower Advisors (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Asset Loan for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Asset Loan fails to satisfy.
(vii) 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 M), 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In performing its dutiesthe event the Collateral Custodian receives instructions from the Collateral Agent, any Borrower Advisors or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall use rely on and follow the same degree instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 care and attention as the Administrative Agent; provided that the Collateral Custodian shall not 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, (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 or otherwise (unless it employs 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 and the Collateral 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 similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative 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 Person of the Collateral Custodian has knowledge of such matter or written notice thereof is received by the Collateral 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 Closing Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Documents delivered by the Seller pursuant to Section 3.2 Receivable Files 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 Agent, as agent for the Secured Parties. Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing reviewing, inspecting or examining any Required Asset DocumentsReceivable 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 Required Asset DocumentsReceivable Files, the Collateral Custodian shall be deemed to be acting as the agent Bailee of the Administrative Agent and the Secured Parties; provided that the Collateral 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 Required Asset Documents Receivable Files or the instruments therein; and provided further that, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document 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 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 Custodian in a written notice delivered at least 45 forty-five (45) days prior to such change. All Required Asset 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. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Servicing Report in accordance with Section 2.9 and Section 2.10 2.6 (the “Payment Duties”).
(v) On the third Business Day of each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent Agent, the Borrower and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets Agent and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Custodian) an updated list of Receivables in its possession and an updated exceptions report.
(vi) In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs with respect to similar Collateral collateral that it holds as Collateral Custodiancollateral custodian for others.
Appears in 4 contracts
Sources: Credit Agreement (CLST Holdings, Inc.), Credit Agreement (CLST Holdings, Inc.), Credit Agreement (CLST Holdings, Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.513.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth identified on the Loan Asset ChecklistsChecklist) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists with respect to any real or personal property constituting the Related PropertyUnderlying Collateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable format) that copy of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit M) by the Servicer 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 any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 Documentschecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretothe address of the Collateral Custodian in Section 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 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every month (or if such day is not a Business Day, the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”next succeeding Business Day).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VIII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral 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 the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Documents delivered by the Seller pursuant to 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 Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In taking and retaining custody of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) 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.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 the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 in accordance with Borrower for each Collateral Obligation listed on the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower and the Administrative Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached hereto, in Annex A or at such other office offices as shall be specified to the Administrative Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Administrative Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Administrative Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Servicer, or a written report to Responsible Officer, in the Administrative Agent and the Servicer (in a form acceptable to case of the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, concerning the non-complying Assets use, handling and disposition of the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Administrative Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Administrative Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral 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 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 or otherwise (unless it employs 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 and the Collateral 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 similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 4 contracts
Sources: Amendment No. 6 (HMS Income Fund, Inc.), Amendment No. 5 (HMS Income Fund, Inc.), Amendment No. 3 (HMS Income Fund, Inc.)
Duties. On or before the initial Funding Date, and until Until its removal pursuant to Section 8.513.9, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 and in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties and subject 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 Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Custodian with respect to such Required Loan Documents that are being delivered.
(ii) Within five (5) Business Days of its receipt of any Required Asset DocumentsLoan Documents and the related Loan Checklist, the Collateral Custodian shall review the Required Loan Documents delivered to it (as identified on the related Collateral and Required Asset Documents Loan Checklist) to confirm that (A) the Obligor name matches the Obligor name identified on the Loan Checklist, (B) such Collateral has Required Loan Documents have been properly executed by each party thereto and has appear to have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect each item listed in the Loan Checklist has been provided to any real or personal property constituting the Related Property, Custodian and (D) confirming the related Outstanding Asset BalanceBalance (based on a comparison to the note or assignment agreement, Asset number and Obligor name with respect to such Asset is referenced as applicable) matches the Outstanding Balance listed on the related Asset List and is not a duplicate Asset Loan Checklist (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer Collateral Manager shall provide to the Collateral Custodian an electronic file copy (in EXCEL or a comparable formatformat acceptable to the Custodian, as applicable) of the related Loan Checklist that contains a list of the Loans, all related Asset List or that otherwise contains Required Loan Documents and whether they require original signatures, the Asset Loan identification number number, the Outstanding Balance of such Loan and the name of the Obligor with respect to each related AssetLoan identified on such schedule. IfNotwithstanding anything herein to the contrary, at the 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. At the conclusion of such review, the Collateral Custodian shall determine that provide the Collateral Manager, the Administrative Agent and the 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 Outstanding Asset Balances Balance of the Collateral Loans with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on and the Outstanding Balance provided in the electronic file, file of the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancyLoan Checklist, and (ii) any Review Criteria that is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer Collateral Manager shall have five twenty (20) Business Days after delivery of a Custodian Report to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer Collateral Manager has still not cured any non-compliance noncompliance by an Asset a Loan with a any Review Criteria, the Collateral Custodian shall promptly notify the Seller Collateral Manager, the Borrower and the Administrative Agent of such determination by providing a written report continued non-compliance and such Loan shall cease to be an Eligible Loan until such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfynon-compliance is cured. In addition, if requested in writing in the form of Exhibit L by the Servicer Collateral 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 Asset Loan which fails to satisfy a any Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Underlying Instruments or Required Asset Loan Documents.
(iiiii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured PartiesLenders; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Custodian’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 Asset Document Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretooffices of the 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 Collateral Custodian in a written notice delivered at least 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by the Collateral Custodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms files of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”)Custodian.
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer Collateral Manager (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Custodian) identifying each Asset Loan for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable any Review Criteria that each such Loan fails to satisfy. The Collateral Manager shall have twenty (20) Business Days after receiving written notice thereof to correct any non-complying Asset fails compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to satisfybe an Eligible Loan until such non-compliance is cured.
(vi) The 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 performing its dutiesthe event the Custodian receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall use rely on and follow the same degree instructions given by the Administrative Agent.
(vii) The Administrative Agent may direct the Custodian to take reasonable actions which are incidental to the actions specifically delegated to the Custodian hereunder; provided that the 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 care and attention as 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 employs has received indemnity which it reasonably deems to be satisfactory with respect thereto).
(viii) The Custodian may conclusively rely on and shall 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 similar 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 (to the extent applicable) the Collateral Manager or (b) the verbal instructions of the Administrative Agent or (to the extent applicable) the Collateral Manager.
(ix) The 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 it holds as Collateral 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.
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 8.5, the Collateral Custodian shall perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Documents delivered by the Seller pursuant to 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 Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In taking and retaining custody of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) 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.
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 From the Closing Date until its resignation pursuant to clause (n) below or before the initial Funding Date, and until its removal pursuant to Section 8.5clause (i) below, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i1) The Collateral Custodian shall take at all times hold all Custody Documents Delivered in physical form at one of its offices in the United States (for purposes hereof, the “Custodial Office”). The Collateral Custodian may change the Custodial Office at any time and retain custody from time to time upon notice to the Borrower, the Investment Manager, the Collateral Agent and the Administrative Agent, provided that the replacement Custodial Office shall be an office of the Required Asset Collateral Custodian located in the United States. All Custody Documents delivered held by the Seller pursuant to 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 Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved be available for inspection by the Administrative Agent within ten Business Days upon prior written request and during normal business hours of the Collateral Custodian’s delivery . Any such inspection shall occur no earlier than five Business Days after such inspection is requested and the costs of such reportinspection shall be borne by the requesting party. The Administrative Agent (including its representatives and designees) may not request more than two inspections per year or, the Collateral Custodian shall return any Asset which fails to satisfy if an Event of Default has occurred and is continuing no more than once a Review Criteria month. Notwithstanding anything to the Seller. Other than the foregoingcontrary herein, the Collateral Custodian shall not be required to hold or accept custody of any Custody Document hereunder to the extent such Custody Document is of a type not approved for deposit into the custodial vault of the Collateral Custodian; provided that (1) the Collateral Custodian notifies the Investment Manager and the Lenders prior to refusing to hold such documents and (2) the failure of the Collateral Custodian to accept and hold such documents shall not result in a default or an Event of Default with respect to the Borrower hereunder (provided that copies of such documents shall have any responsibility for reviewing any Required Asset Documentsbeen delivered by the Borrower to or otherwise made available to the Administrative Agent).
(ii2) In taking and retaining custody of the Required Asset any such Custody Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that (x) the Collateral Custodian makes no representations as to the existence, perfection perfection, enforceability or priority of any Lien on the Required Asset such Custody Documents or the instruments thereintherein or as to the adequacy or sufficiency of such Custody Documents; and provided further that, (y) the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii3) All Required Asset Document Custody Documents required to be held by the Collateral Custodian shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents Custodial Office and shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset The Collateral Custodian shall segregate such Custody Documents on its inventory system and will not commingle any such physical Custody Documents with any other files of the Collateral Custodian other than those, if any, relating to the Borrower and its Affiliates and Subsidiaries.
(4) 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 clearly segregated from any read into this Agreement, the other documents Transaction Documents or instruments maintained by 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 Custodian shall not be deemed to assume any obligations or liabilities of the Borrower or Investment Manager hereunder or under any other Transaction Document.
(iv5) The Collateral Custodian shall make payments pursuant have no obligation to review or verify whether the Borrower or the Investment Manager on its behalf has obtained and delivered (or made available to the terms Transaction Data Room) the necessary Diligence Information and other Custody Documents required for purchases of the Monthly Report in accordance with Section 2.9 Collateral Obligations hereunder, and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report have no obligation to maintain the Administrative Agent and Transaction Data Room on behalf of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyBorrower.
(vi) 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.
Appears in 3 contracts
Sources: Credit Agreement (Apollo Debt Solutions BDC), Credit Agreement (Apollo Debt Solutions BDC), Credit Agreement (Apollo Debt Solutions BDC)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody Custodian, as the duly appointed agent of the Required Secured Parties, for these purposes, acknowledges that the Borrower shall cause the Investment Manager to deliver, on or prior to the applicable Funding Date (but no more than five (5) Business Days after such Funding Date, except as set forth in Section 10.22), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Documents Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered by to the Seller pursuant Collateral Custodian from time to Section 3.2 time, and that the Collateral Custodian will credit each Collateral Obligation File to the Collection Account in accordance with the terms and conditions of this Agreement, all for hereof. Promptly upon 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 Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Investment Manager and the Administrative Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains is acting exclusively as the related Asset List or that otherwise contains the Asset identification number and the name custodian of the Obligor with respect Secured Parties, and has no instructions to each related Asset. If, at hold any Collateral Obligation File for the conclusion benefit of any Person other than the Secured Parties and undertakes to perform such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations specified on Schedule III attached hereto, or at such other office as of the Collateral Custodian. Each Collateral Obligation File shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Administrative Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Administrative Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Investment Manager, or a written report to Responsible Officer, in the Administrative Agent and the Servicer (in a form acceptable to case of the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, concerning the non-complying Assets use, handling and disposition of the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Administrative Agent, the Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Administrative Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral 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 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 or otherwise (unless it employs 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 and the Collateral 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 similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of the Collateral Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 3 contracts
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III), Loan Financing and Servicing Agreement (FS Investment Corp II), Loan Financing and Servicing Agreement (TCP Capital Corp.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 in accordance with Borrower for each Collateral Obligation listed on the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached hereto, in Annex A or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File shall be placed together marked with an appropriate identifying label (other than documents delivered electronically) and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Servicer, or a written report to Responsible Officer, in the Administrative Agent case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Facility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 3 contracts
Sources: Loan Financing and Servicing Agreement (BC Partners Lending Corp), Loan Financing and Servicing Agreement (MSD Investment Corp.), Loan Financing and Servicing Agreement (MSD Investment Corp.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.57.5 or resignation pursuant to Section 7.7, the Collateral Custodian Agent shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Agent shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 Asset DocumentsLoan Documents and the related Loan Checklist, the Collateral Custodian Agent shall review the related Collateral and Required Asset Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Collateral has Required Loan Documents have been properly executed by each party thereto and has appear to have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect each item listed in the Loan Checklist has been provided to any real or personal property constituting the Related Property, Collateral Agent and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, Asset number and Obligor name with respect as applicable) is greater than or equal to such Asset is referenced the loan balance listed on the related Asset List and is not a duplicate Asset Loan Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral CustodianAgent, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral CustodianAgent, the Servicer Collateral Manager shall provide to the Collateral Custodian Agent a hard copy (which may be preceded by an electronic file (copy in EXCEL or a comparable formatformat 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 related Asset List or that otherwise contains the Asset Loan identification number and the name of the Obligor with respect to each related AssetLoan. 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 Custodian shall determine that (i) Agent is unable to confirm the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic fileReview Criteria, 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 Servicer Collateral Manager and the Borrower of such determination and provide the Servicer Collateral Manager and the Borrower with a list of the non-complying Assets Loans and the applicable Review Criteria that they fail to satisfy. The Servicer Collateral Manager shall have five twenty (20) Business Days to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer Collateral Manager has still not cured any non-compliance by an Asset a Loan with a any Review Criteria, the Collateral Custodian Agent shall promptly notify the Seller Collateral Manager, the Borrower and the Administrative Agent of such determination by providing a written report continued non-compliance and such Loan shall cease to be an Eligible Loan until such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfynon-compliance is cured. In addition, if requested in writing in the form of Exhibit D by the Servicer Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral CustodianAgent’s delivery of such report, the Collateral Custodian Agent shall return the Required Loan Documents for any Asset Loan which fails to satisfy a any Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian Agent shall not have any responsibility for reviewing any Required Asset DocumentsUnderlying Instruments.
(ii) In taking and retaining custody of the Required Asset DocumentsUnderlying Instruments, the Collateral Custodian Agent shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian Agent makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents Underlying Instruments or the instruments therein; and provided further that, that the Collateral CustodianAgent’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by offices of the Collateral Custodian Agent set forth in a written notice delivered at least 45 days prior to such changeSection 5.5(c). All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Agent shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianAgent.
(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 Custodian Agent shall provide a written report to the Administrative Agent and the Servicer Collateral Manager (in a form acceptable mutually agreeable to the Administrative Agent and the Collateral Agent) identifying each Asset Loan for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable 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-complying Asset fails compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to satisfybe 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 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 Borrowing 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 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 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 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 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.
(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 dutiesduties under this Agreement, the Collateral Custodian 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 use 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 same degree 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 care legal counsel and attention as independent accountants obtained in good faith in performing its duties hereunder and shall be deemed to have acted in good faith if it employs acts in accordance with such advice.
(x) The Collateral Agent shall create a collateral database with respect to similar 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) 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 holds 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 UMB Bank, National Association as Collateral CustodianAgent to enter into the Securities Account Control Agreement.
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 Original Closing Date until its removal pursuant to Section 8.512.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists with respect to any real or personal property constituting the Related Property, Underlying Collateral is included and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit N) by the Servicer 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 any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III 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 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every month (or if such day is not a Business Day, the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”next succeeding Business Day).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (A) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (B) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral 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 Servicer shall take or before cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the initial Funding DateCollateral Portfolio from time to time, and until its removal pursuant to Section 8.5all in accordance with Applicable Law, the Credit and Collection Policy (if Solar Capital is the Servicer) and the Servicing Standard. Prior to the occurrence of a Servicer Replacement Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Custodian shall perform on behalf Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Administrative Agent and Servicer shall include the Secured Parties, the following duties and obligationsfollowing:
(i) The supervising the Collateral Portfolio, including communicating with Obligors, executing amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent and each Lender Agent (with a copy to the Collateral Agent and the Collateral Custodian shall take and retain custody the Backup Servicer) in respect of the Required servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent, the Backup Servicer or any Lender Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, each Lender Agent, the Collateral Agent, the Backup Servicer or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender Agent, Collateral Custodian, the Backup Servicer or the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset Documents delivered clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Seller Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to Section 3.2 in accordance with the terms and conditions of this Agreement;
(vi) notifying the Administrative Agent, all the Backup Servicer and each Lender Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) notifying the Administrative Agent and each Lender Agent of any change to the Credit and Collection Policy;
(viii) maintaining the perfected first priority security interest of the Collateral Agent, for the benefit of the Secured Parties and subject Parties, in the Collateral Portfolio;
(ix) maintaining the Loan Asset File with respect to the Lien thereon in favor Loan Assets included as part of the Administrative Agent Collateral Portfolio; provided that, so long as agent for the Secured Parties. Within five Business Days of its receipt Servicer is in possession of any Required Asset Loan Documents, the Collateral Custodian shall review the related Collateral and Servicer will hold such Required Asset Loan Documents to confirm that in a fireproof safe or fireproof file cabinet;
(Ax) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by directing the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder Agent to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In taking and retaining custody of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Servicing Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).2.04;
(vxi) On each Reporting Datedirecting the sale or substitution of Collateral Portfolio in accordance with Section 2.07;
(xii) providing assistance to the Borrower with respect to the Purchase and Contribution of and payment for the Loan Assets;
(xiii) instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(xiv) delivering the Loan Asset Files and the Loan Asset Schedule to the Collateral Custodian;
(xv) taking all actions necessary in establishing the Advance Date Assigned Value, and Updated Assigned Value in accordance with the terms hereof (including paying the compensation of the Nationally Recognized Valuation Firms); and
(xvi) complying with such other duties and responsibilities as may be required of the Servicer by this Agreement. It is acknowledged and agreed that in circumstances in which a Person other than the Borrower, the Collateral Custodian Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such performance would conflict with or result in a breach of any of the express terms of the related Loan Agreements; provided that the Servicer shall (a) provide a prompt written report notice to the Administrative Agent and the Backup Servicer upon becoming aware of such conflict or breach, (b) have determined that there is no other commercially reasonable performance that it could render consistent with the express terms of the Loan Agreements which would result in all or a form acceptable portion of the servicing duties being performed in accordance with this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the effects of such non-complying Assets performance including performing as much of the servicing duties as possible and performing such other commercially reasonable or similar duties consistent with the applicable Review Criteria that any non-complying Asset fails to satisfyterms of the Loan Agreements.
(vi) 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.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (SLR Investment Corp.), Loan and Servicing Agreement (SLR Investment Corp.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Documents delivered by the Seller pursuant to 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 Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In taking and retaining custody of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 forty-five (45) days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) 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.
Appears in 2 contracts
Sources: 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 8.512.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed and has have no missing or mutilated pages, (B) any UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been mademade as listed on the Loan Asset Checklist, (C) if listed on the Loan Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Related PropertyUnderlying Collateral, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit N) by the Servicer 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 any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 Documentschecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further thatprovided, further, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretothe address of the Collateral Custodian 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 45 30 days (or such shorter notice period as consented to by the Agent) prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every month (or if such day is not a Business Day, the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”next succeeding Business Day).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent (who will provide each Lender with a copy promptly upon receipt thereof) and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs with respect to similar Collateral collateral that it holds as collateral custodian for others.
(i) The Collateral Custodian agrees to cooperate with the Agent and the Trustee and deliver any Required Loan Documents to the 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 Trustee or the 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 any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Trustee, the Servicer or the Borrower which conflict with any instructions received by the Agent, the Collateral Custodian shall rely on and follow the instructions given by the Agent.
(ii) The Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Party 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 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 within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the 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 provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral 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 8.512.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists with respect to any real or personal property constituting the Related PropertyUnderlying Collateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit N) by the Servicer 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 any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 Documentschecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretothe address of the Collateral Custodian 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 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every month (or if such day is not a Business Day, the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”next succeeding Business Day).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Solar Capital Ltd.), Loan and Servicing Agreement (Solar Capital Ltd.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral The Document Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of Document Custodian, as the Required Asset Documents delivered by the Seller pursuant to Section 3.2 in accordance with the terms and conditions of this Agreement, all for the benefit duly appointed agent of the Secured Parties and subject to Parties, for these purposes, acknowledges that the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Servicer shall deliver no later than three (3) Business Days of its receipt of any Required Asset Documentsafter such Funding Date, except as set forth in Section 10.20, the Collateral Custodian shall review the related Obligation Files delivered to it for each Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth Obligation listed on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect Schedule of Collateral Obligations attached to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectivelyApproval Request or the related Reinvestment Request, the “Review Criteria”)as applicable. In order to facilitate the foregoing review by the Collateral Custodian, The Document Custodian acknowledges that in connection with each delivery of Required any Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL Approval Request or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of the Obligor with respect Collateral Obligations supplement) may be delivered to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect from time to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documentstime.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Document Custodian, the Document Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Document Custodian shall be deemed to be acting as for the agent purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Document Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset The Document Custodian shall maintain continuous custody of all Collateral Obligation Files delivered to it in its possession and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File held by the Document Custodian shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together 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 Agent. All Required Asset Documents The Document Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Document Custodian shall (i) act exclusively as Document Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Agent, the Agent’s written instructions shall control.
(v) On each Reporting DateThe Document Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Servicer, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyObligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Agent, the Servicer, the Document Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Document Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Agent or the Collateral Administrator, as applicable, shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Document Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Document Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Document Custodian hereunder, such party 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 Agent; provided that the Document Custodian shall use not be required to take any action hereunder at the same degree request of care and attention as the Agent, any Secured Parties 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 employs has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Document Custodian requests the consent of the Agent and the Document Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to similar Collateral have declined to consent to the relevant action.
(viii) The Document 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 such party, or the Agent. The Document Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default Event of Default unless the Document Custodian has received written notice from the Agent, Servicer or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Servicer Event of Default,” or “Notice of Servicer Event of Default,” as applicable. In the absence of receipt of such notice, the Document Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default, in each case unless it holds as Collateral Custodianhas actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Ares Strategic Income Fund), Loan and Servicing Agreement (Ares Strategic Income Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured PartiesAgent, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Portfolio Asset Files and the Required Asset Portfolio Documents delivered by the Seller Portfolio Asset Servicer and Borrower pursuant to Section 3.2 in accordance with the terms and conditions of this Agreement3.02(c) or 3.04(d), all for the benefit of the Secured Parties and subject to the Lien thereon in favor of the Administrative Agent as agent for on behalf of the Secured Parties. Within five Business Days of its receipt of any Required Portfolio Documents (if the Collateral Custodian receives no more than 10 Portfolio Asset DocumentsFiles during such five Business Day period) or within a reasonable timeframe as mutually agreed upon, the Collateral Custodian shall review the related Collateral and such Required Asset Portfolio Documents 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 Agreement matches that on the Portfolio Asset Schedule, as applicable, (B) such Collateral has Required Portfolio Documents, have been properly executed (either an original or a copy, as indicated on the related Portfolio Asset Checklist), appear to relate to such Portfolio Asset and has have no missing or mutilated pages, (BC) any filed copies of the UCC financing statements and other filings (as set forth identified on the related Portfolio Asset ChecklistsChecklist are included and (D) have been madeif listed on the related Portfolio Asset Checklist, (C) a copy of an Insurance Policy exists or insurance certificate with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to Underlying Collateral for such Portfolio Asset is referenced on included (the related Asset List and is not a duplicate Asset (items to be reviewed pursuant to this sentence, collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required a Portfolio Asset Documents File hereunder to the Collateral Custodian, the Portfolio Asset Servicer shall provide to the Collateral Custodian a hard copy (which may be proceeded by an electronic file copy and separately uploaded by the Borrower or the Portfolio Asset Servicer or its designee to the designated ▇▇▇▇▇▇▇.▇▇▇; provided that each .pdf document will be identified with the loan number in the format “LoanNumber.DocumentName.pdf” (in EXCEL or a comparable formatexample, 12345.mortgage.pdf)) that of the related Portfolio Asset Checklist which contains the related Portfolio Asset List or that otherwise contains information with respect to the Portfolio Asset File being delivered, identification number and the name of the Obligor with respect to each such Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Portfolio Asset File shall be limited to the Review Criteria and based on the information provided on the related AssetPortfolio Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i1) the Outstanding Asset Balances principal balance of the Collateral Portfolio Asset with respect to which it has received Required the Portfolio Asset Documents with respect to is less than as File does not match the principal balance set forth on the electronic filePortfolio Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent Agent, Initial Lender and the Facility Servicer of such discrepancy, and discrepancy within one Business Day or (ii2) any other Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Borrower, Administrative Agent, Initial Lender and the Facility Servicer of such determination and provide the Borrower and Facility Servicer with a list of the non-complying Portfolio Assets and the applicable Review Criteria that they fail to satisfy. The Servicer Borrower shall have five ten Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Borrower or Portfolio Asset Servicer in accordance with Section 9.08 and approved by the Administrative Agent (acting at the direction of the Majority Lenders) within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Portfolio Asset File which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Portfolio Asset DocumentsFile.
(ii) In taking and retaining custody of the Required Portfolio Asset DocumentsFiles, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and on behalf of the Secured Parties; provided that (A) the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Portfolio Asset Documents Files or the instruments therein; therein and provided further that, (B) the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Portfolio Asset Document Files shall be kept continuously stored in fire resistant vaults, rooms or cabinets at the locations specified as the address of the Collateral Custodian on Schedule III attached hereto, IV or at such other office as shall be specified to the Administrative Agent Agent, Facility Servicer and the Borrower by the Collateral Custodian in a written notice delivered at least 45 30 days prior to such change. All Required The Collateral Custodian shall segregate the Portfolio Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral CustodianFiles on its inventory system.
(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 DateDate following the first delivery of Required Portfolio Documents to the Collateral Custodian, the Collateral Custodian shall provide a written report to the Administrative Agent Agent, the Borrower and the Servicer Lenders (in a form acceptable mutually agreeable to the Administrative AgentAgent (at the direction of the Majority Lenders) and the Collateral Custodian) identifying each Portfolio Asset for which it holds Required a Portfolio Asset Documents, the non-complying Assets File and the applicable Review Criteria that any non-complying 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.
(viv) In performing its duties, the The Collateral Custodian shall use have no duties or obligations other than those specifically set forth herein or as may subsequently be agreed to in writing by the same degree of care and attention as it employs with respect to similar Collateral that it holds as Collateral Custodianparties hereto.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (ACRES Commercial Realty Corp.), Loan and Servicing Agreement (Exantas Capital Corp.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 in accordance with the terms and conditions Borrower for each Collateral Obligation. The Collateral Custodian acknowledges additional Collateral Obligation Files (specified on an accompanying Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations supplement) may be delivered to the Lien thereon in favor of Collateral Custodian from time to time. Promptly upon the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached hereto, in Annex A or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of a written report to Responsible Officer of the Administrative Agent and Borrower, the Servicer (in a form acceptable to or the Administrative Facility Agent) identifying each Asset for which it holds Required Asset Documents, as applicable, concerning the non-complying Assets use, handling and disposition of the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Facility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 2 contracts
Sources: Loan Financing and Sale Agreement (AB Private Credit Investors Corp), Loan Financing and Servicing Agreement (AB Private Credit Investors Corp)
Duties. On or before From the initial Funding Date, and Second Restatement Date until its removal pursuant to Section 8.5, the Collateral Custodian Trustee shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Trustee shall take and retain custody of the Required Asset Documents Loan Files delivered by the Seller Borrower pursuant to 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 Trustee, for the benefit of the Secured Parties. Within five two Business Days of its receipt of any Required Asset DocumentsLoan File, the Collateral Custodian Trustee shall review the related Collateral and such Required Asset Documents Loan File to confirm that (A) the loan documents and instruments in such Collateral has Required Loan File have been properly executed and has have no missing or mutilated pages, (B) any there is evidence that UCC and other filings (as set forth to extent identified on the Asset Checklistsrelated Loan Checklist as being required by the Required Loan File) have been made, (C) if listed on the Loan Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balanceoriginal Loan balance, Asset Loan number and Obligor name with respect to such Asset Loan is referenced on the related Asset List Loan Checklist and is not a duplicate Asset Loan (based on the Loan number) (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral CustodianTrustee, in connection with each delivery of Required Asset Documents Loan File hereunder to the Collateral CustodianTrustee, the Servicer shall provide to the Collateral Custodian Trustee an electronic file (in EXCEL Microsoft EXCEL® or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number Loan number, Obligor name, original loan balance and the name of the Obligor with respect to each related AssetLoan Checklist. If, at At the conclusion of such review, the Trustee shall deliver to the Servicer, the Borrower and the Administrative Agent a collateral receipt in the form of Exhibit L attached hereto (a “Collateral Custodian shall determine that Receipt”). If any Collateral Receipt discloses any deficiencies (ia “Deficiency”) the Outstanding Asset Balances in any of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic fileLoan Files, the Collateral Custodian Trustee shall immediately promptly notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination Deficiency and provide them with an exception report specifying the Servicer with Loans which have a list of the non-complying Assets Deficiency and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five fifteen (15) Business Days to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset a Loan with a any Review Criteria, the Collateral Custodian Trustee shall promptly notify the Seller Borrower and the Administrative Agent of such determination by providing a written an updated exception report to such persons Persons identifying, with particularity, each Asset Loan and each of the applicable Review Criteria that such Asset Loan fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten fifteen (15) Business Days of the Collateral CustodianTrustee’s delivery of such report, the Collateral Custodian Trustee shall return any Asset Loan which fails to satisfy a Review Criteria to the SellerBorrower or its designee. Other than the foregoing, the Collateral Custodian Trustee shall not have any responsibility for reviewing reviewing, inspecting or examining any Required Asset DocumentsLoan 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 Required Asset DocumentsLoan Files, the Collateral Custodian Trustee shall be deemed to be acting as the agent Bailee of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian 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 Required Asset Documents Loan Files or the instruments therein; and provided further that, the Collateral CustodianTrustee’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan 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 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 Custodian Trustee in a written notice delivered at least 45 days prior to such change. All Required Asset Documents Loan 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. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(iv) The Collateral Custodian shall make payments pursuant to On the terms third Business Day of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian Trustee shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets Agent and the applicable Review Criteria that any non-complying Asset fails to satisfyTrustee) an updated list of Loans in its possession and an updated exceptions report.
(viv) In performing its custodial duties, the Collateral Custodian Trustee shall use the same degree of care and attention as it employs with respect to similar Collateral collateral that it holds as Collateral Custodiancustodian for others.
Appears in 2 contracts
Sources: Revolving Credit Agreement (NewStar Financial, Inc.), Revolving Credit Agreement (NewStar Financial, Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.511.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 3.02(a) 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 Asset Loan Documents, the related Loan Tape and a hard copy of the Loan Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents delivered to it to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Checklist, a copy of an Insurance Policy exists (or evidence thereof) with respect to any real or personal property constituting the Related PropertyUnderlying Collateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, Asset as applicable), Loan number and Obligor name name, as applicable, with respect to such Asset Loan is referenced on the related Asset List and is not a duplicate Asset Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Checklist which contains the related Asset List or that otherwise contains Loan information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related Assetsuch Loan. 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. If, at the conclusion of such review, the Collateral Custodian shall determine that (iI) the Outstanding Asset Balances original balance of the Collateral Loan with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Tape, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one (1) Business Day, and or (iiII) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets Loans and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. 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 Custodian’s delivery of such report, the Collateral Custodian shall return any Asset Loan which fails to satisfy a any Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset 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 Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided provided, further that, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified address of the Collateral Custodian set forth on Schedule III attached heretoAnnex 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 a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Asset Loan for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Asset Loan fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 employs 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 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.
(vii) 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 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 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 any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder unless a Responsible Officer of the Collateral Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral 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 Closing Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Documents Receivable Files delivered by the Seller Borrowers pursuant to Section 3.2 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 Agent, as agent for the Secured Parties. Within five (i) two (2) Business Days of its receipt of any Required Asset DocumentsReceivable 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 Receivable File with respect to Receivables being acquired from Sellers of Receivables not previously included in the Collateral, the Collateral Custodian shall review the related Collateral and such Required Asset Documents Receivable File to confirm that (A) the loan documents and instruments in such Collateral has Required Receivable File have been properly executed and has have no missing or mutilated pages, and (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balanceoriginal principal balance of the Receivable (for closed end contracts only), Asset contract or other identifying number and Obligor name with respect to such Asset Receivable is referenced on the related Asset Receivables List and is not a duplicate Asset Receivable (based on the contract number or other identifying number) (such items (A) and (B) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each the delivery of Required Asset Documents Receivable Files hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL Excel® or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number contract number, Obligor name and the name of the Obligor with respect to each related Assetoriginal loan balance (if applicable). If, at At the conclusion of such review, the Collateral Custodian shall determine that deliver to the Servicer, the Borrowers and the Administrative Agent a collateral receipt in the form of Exhibit K attached hereto (ia “Collateral Receipt”). If any Collateral Receipt discloses any deficiencies (a “Deficiency”) the Outstanding Asset Balances in any of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic fileReceivable Files, the Collateral Custodian shall immediately promptly notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination Deficiency and provide them with an exception report specifying the Servicer with Receivables which have a list of the non-complying Assets Deficiency and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset a Receivable with a any Review Criteria, the Collateral Custodian shall promptly notify the Seller Borrowers and the Administrative Agent of such determination by providing a written an updated exception report to such persons Persons identifying, with particularity, each Asset Receivable and each of the applicable Review Criteria that such Asset Receivable fails to satisfy. In addition, if requested in writing by the Servicer 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 any Asset Receivable which fails to satisfy a Review Criteria to the SellerBorrowers or their applicable designee. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing reviewing, inspecting or examining any Required Asset DocumentsReceivable 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 Required Asset DocumentsReceivable Files, the Collateral Custodian shall be deemed to be acting as the agent Bailee of the Administrative Agent and the Secured Parties; provided that the Collateral 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 Required Asset Documents Receivable Files or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document 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 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 Custodian in a written notice delivered at least 45 forty-five (45) days prior to such change. All Required Asset 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. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Servicing Report in accordance with Section 2.9 2.7 and Section 2.10 2.8, as applicable, (the “Payment Duties”).
(v) On the third Business Day of each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets Agent and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Custodian) an updated list of Receivables in its possession and an updated exceptions report.
(vi) In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs with respect to similar Collateral collateral that it holds as Collateral Custodiancollateral custodian for others.
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 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured PartiesAgent, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 5.01(f) 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 on behalf of the Secured Parties. Within five ten (10) Business Days of its receipt of the Required Loan Documents for any Required Portfolio Asset, the Loan Asset DocumentsSchedule and the related Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and such Required Asset Loan Documents to confirm that (A) all Required Loan Documents for such Collateral has Loan Asset File have been properly executed (either an original or a copy, as indicated on the related Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC financing statements and other filings (as set forth identified on the related Loan Asset Checklists) have been madeChecklist are included, (C) if listed on the related Loan Asset Checklist, a copy of an Insurance Policy exists or insurance certificate with respect to any real or personal property constituting the Related Property, Underlying Collateral for such Portfolio Asset is included and (D) confirming the related Outstanding Asset Balancestated balance, Portfolio Asset number and Obligor name name, as applicable, with respect to such Portfolio Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items in clauses (A) through (D) above, collectively, the “"Review Criteria”"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Portfolio Asset Servicer shall provide to the Collateral Custodian a hard copy or an electronic file (in EXCEL or a comparable format) that copy of the related Loan Asset Checklist which contains the related Portfolio Asset List or that otherwise contains information with respect to the Required Loan Documents being delivered, Portfolio Asset identification number and the name of the Obligor with respect to each such Portfolio Asset. Notwithstanding anything herein to the contrary, the Collateral Custodian's obligation to review the Required Loan Documents for any Loan Asset shall be limited to the Review Criteria based on the information provided on the related AssetLoan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i1) the Outstanding Asset Balances stated balance of the Collateral Loan Asset with respect to which it has received the Required Asset Loan Documents with respect to is less than not as is set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent, the Calculation Agent and the Portfolio Asset Servicer of such discrepancy, and discrepancy within one Business Day or (ii2) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer Portfolio Asset Servicer, the Calculation Agent and the Administrative Agent of such determination and provide the Portfolio Asset Servicer with a list of the non-complying 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 Servicer Borrower shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit E) by the Portfolio Asset Servicer and approved by the Administrative Agent Majority Lenders within ten 10 Business Days of the Collateral Custodian’s 's delivery of such report, the Collateral Custodian shall return any Asset Required Loan Documents which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Asset DocumentsFile.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and on behalf of the Secured Parties; provided that (A) the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Loan Asset Documents Files or the instruments therein; therein and provided further that, (B) the Collateral Custodian’s 's duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents 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 in Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent and the Portfolio Asset Servicer by the Collateral Custodian in a written notice delivered at least 45 30 days prior to such change. All Required Loan Documents and any other Loan Asset Documents 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. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from and any other documents or instruments maintained by 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 Majority Lenders.
(iv) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every month (or if such day is not a Business Day, the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”next succeeding Business Day).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent Agent, the Borrower and the Servicer Calculation Agent (in a form acceptable mutually agreeable to the Administrative AgentAgent (at the direction of the Majority Lenders) and the Collateral Custodian) identifying each Loan Asset for which it holds Required a Loan Asset Documents, the non-complying Assets File and the applicable Review Criteria that any non-complying Loan Asset File fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree of care and attention as it employs with respect to similar Collateral that it holds as 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.
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 Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody Custodian, as the duly appointed agent of the Required Secured Parties, for these purposes, acknowledges that the Collateral Manager shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.20), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Documents Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered by to the Seller pursuant Collateral Custodian from time to Section 3.2 time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms and conditions of this Agreement, all for hereof. Promptly upon 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 Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Collateral Manager, the Agent and Required Asset Documents each Lender Agent.
(ii) With respect to confirm that (A) such each Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains is acting exclusively as the related Asset List or that otherwise contains the Asset identification number and the name custodian of the Obligor with respect Secured Parties, and has no instructions to each related Asset. If, at hold any Collateral Obligation File for the conclusion benefit of any Person other than the Secured Parties and undertakes to perform such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.518.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached hereto, in Annex A or at such other office offices as shall be specified to the Administrative Agent by and the Collateral Custodian Manager in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Agent, the Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Collateral Manager, or a written report to Responsible Officer, in the Administrative Agent case of the Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Agent, any Agent, the Collateral Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Agent in writing, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default Event of Default unless the Collateral Custodian has received written notice from the Agent, Collateral Manager or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Collateral Manager Event of Default,” or “Notice of Collateral Manager Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Collateral Manager Event of Default or Collateral Manager Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Blue Owl Capital Corp), Loan and Servicing Agreement (Blue Owl Capital Corp)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 in accordance with Borrower for each Collateral Obligation listed on the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower, each Agent and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached hereto, in Annex A or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Servicer, or a written report to Responsible Officer, in the Administrative Agent case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Facility Agent, the Servicer, the Collateral Custodian, any Agent or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent in the absence of its own bad faith, fraud, gross negligence, willful misconduct or reckless disregard. The Collateral 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 Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Oaktree Specialty Lending Corp), Loan Financing and Servicing Agreement (Oaktree Strategic Income Corp)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody Custodian, as the duly appointed agent of the Required Secured Parties, for these purposes, acknowledges that the Services Provider shall deliver, on or prior to the applicable Funding Date (but no more than three (3) Business Days after such Funding Date, except as set forth in Section 10.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Documents Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered by to the Seller pursuant Collateral Custodian from time to Section 3.2 time, and that the Collateral Custodian will provide the Collateral Agent with all information necessary for the Collateral Agent to credit each Collateral Obligation File to the Collection Account in accordance with the terms and conditions of this Agreement, all for hereof. Promptly upon 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 Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Services Provider, the Facility Agent and each Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains is acting exclusively as the related Asset List or that otherwise contains the Asset identification number and the name custodian of the Obligor with respect Secured Parties, and has no instructions to each related Asset. If, at hold any Collateral Obligation File for the conclusion benefit of any Person other than the Secured Parties and undertakes to perform such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached hereto, in Annex A or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Services Provider in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Services Provider, or a written report to Responsible Officer, in the Administrative Agent case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Facility Agent, any Agent, the Services Provider, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Facility Agent in writing, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of a Facility Termination Event, Unmatured Facility Termination Event, Unmatured Services Provider Event of Default or Services Provider Event of Default unless the Collateral Custodian has received written notice from the Facility Agent, Services Provider or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Facility Termination Event,” “Notice of Unmatured Facility Termination Event,” “Notice of Unmatured Services Provider Event of Default,” or “Notice of Services Provider Event of Default,” as applicable. In the absence of receipt of such notice, the Collateral Custodian may conclusively assume that there is no Facility Termination Event, Unmatured Facility Termination Event, Unmatured Services Provider Event of Default or Services Provider Event of Default, in each case unless it has actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Owl Rock Capital Corp), Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Duties. On or before From the initial Funding Date, and Closing Date until its removal or replacement pursuant to Section 8.511.05 or Section 11.07, as applicable, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 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 (the “Review Period”), the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists (or evidence thereof) with respect to any real or personal property constituting the Related PropertyCollateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (iI) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as does not match the balance set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one (1) Business Day, and or (iiII) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Administrative Agent and the Servicer of such determination and provide deliver to the Administrative Agent and the Servicer with a certification substantially in the form attached hereto as Exhibit P that includes a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. 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 Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 DocumentsChecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress of the Collateral Custodian located at ▇▇▇▇ ▇▇▇▇ ▇▇▇, Florence, South Carolina, 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 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) The Collateral Custodian shall make payments pursuant to On the terms Reporting Date of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree of care and attention as it employs with respect to similar Collateral that it holds as 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 Custodian shall not be deemed to assume any obligations or liabilities of the Borrower or Servicer hereunder or under any other Transaction Document.
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 8.512.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists with respect to any real or personal property constituting the Related PropertyUnderlying Collateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit N) by the Servicer 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 any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 Documentschecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III 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 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every month (or if such day is not a Business Day, the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”next succeeding Business Day).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral 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 From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.512.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents and the related Loan Asset DocumentsChecklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) the Obligor name matches the Loan Asset Checklist, (B) such Collateral has Required Loan Documents have been properly executed by each party thereto and has have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect each item listed in the Loan Asset Checklist has been provided to any real or personal property constituting the Related Property, and Collateral Custodian (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, Asset number and Obligor name with respect as applicable) is greater than or equal to such Asset is referenced the loan balance listed on the related Asset List and is not a duplicate Asset Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that is unable to confirm clauses (iA) the Outstanding Asset Balances or (D) of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic fileReview Criteria, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any other Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer and the Administrative Agent of such determination and provide the Servicer and the Administrative Agent with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after To the conclusion of extent such non-compliance has not been cured within such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent has provided the Servicer with written confirmation of such determination by providing non-compliance, such Loan Asset shall be deemed to be a written report to such persons identifying, with particularity, each Warranty Loan Asset and each shall no longer be included in the calculation of the applicable Review Criteria that any Borrowing Base hereunder until such Asset fails to satisfydeficiency 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 Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, 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 45 30 days (or such shorter notice period as consented to by the Administrative Agent) prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every month (or if such day is not a Business Day, the Monthly Report next succeeding Business Day), commencing in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting DateJuly 2016, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying 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.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 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 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 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 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, 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 Until its removal pursuant to Section 8.55(e), the Collateral Custodian shall perform on behalf of the Administrative Collateral Agent and the Secured Parties, the following duties and obligations:
(iA) The Collateral Custodian shall take and retain custody of the Required Asset Documents delivered by the Seller pursuant to Section 3.2 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 Administrative Collateral Agent as collateral agent for the Secured Parties. Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and such Required Asset Documents to confirm that (A) such Collateral has Required Asset Documents, to the extent indicated on the Asset Checklist, have been properly executed and has 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 been madea file stamp set forth thereon, (C) an Insurance Policy exists with respect to any real or personal property constituting a certificate of insurance (as set forth on the Related PropertyAsset Checklist) is contained in the Asset File, and (D) confirming the related Outstanding Asset Balance, Asset identification number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the Asset Checklist and the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at At the conclusion of such review, the Collateral Custodian shall determine that (i) deliver a receipt in the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than form attached hereto as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfyExhibit 5(b). The Servicer and the related Pledgor shall have five Business Days use commercially reasonable efforts to correct any non-compliance with a Review CriteriaCriteria identified on such receipt. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review CriteriaTwo times each calendar month, the Collateral Custodian shall promptly notify deliver to the Seller Servicer and the Administrative Collateral Agent of such determination by providing a written an exception report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfy. In addition, if requested in writing by the Servicer and approved by the Administrative Collateral Agent or as otherwise directed by the Collateral Agent within ten Business Days of the Collateral Custodian’s delivery of such exception report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Sellerapplicable 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 Custodian shall not have any responsibility for reviewing any Required 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 Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Collateral Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iiiC) All Required Asset Document Documents kept by the Collateral Custodian shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III 5(b) attached hereto, or at such other office as shall be specified to the Administrative Collateral Agent by the Collateral Custodian in a written notice delivered at least 45 forty-five (45) days prior to such change. All Required 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. All Required Asset Documents notes and Loan Registers included in the Pledged Collateral shall be clearly electronically or physically segregated from any other documents or instruments maintained by the Collateral Custodian. At the reasonable request of the Collateral Agent, the Initial Borrower shall promptly (and in any event within ten (10) Business Days) deliver to the Collateral Agent copies of all Asset Files that have not been segregated.
(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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(viD) In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs with respect to similar Collateral collateral that it holds as Collateral Custodiancollateral custodian.
Appears in 2 contracts
Sources: Pledge Agreement (Capitalsource Inc), Pledge Agreement (Capitalsource Inc)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral The Document Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Document Custodian, as the duly appointed agent of the Secured Parties, for these purposes shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by the Seller pursuant to Section 3.2 in accordance with the terms and conditions of this Agreement, all it 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 Business Days of its receipt of any Required Asset Documents, the each Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth Obligation listed on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect Schedule of Collateral Obligations attached to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectivelyApproval Request or the related Reinvestment Request, the “Review Criteria”)as applicable. In order to facilitate the foregoing review by the Collateral Custodian, The Document Custodian acknowledges that in connection with each delivery of Required any Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL Approval Request or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect Reinvestment Request, additional Collateral Obligation Files may be delivered to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect from time to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documentstime.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Document Custodian, the Document Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Document Custodian shall be deemed to be acting as for the agent purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Document Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset The Document Custodian shall maintain continuous custody of all Collateral Obligation Files delivered to it in its possession and shall reflect in its records the interest of the Secured Parties therein. Each tangible Collateral Obligation File held by the Document Custodian shall be kept in a fire resistant vaultsvalue, rooms room or cabinets at the locations specified on Schedule III attached hereto, or at such other office as cabinet and shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together 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 Agent. All Required Asset Documents The Document Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Document Custodian shall (i) act exclusively as Document Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Agent, the Agent’s written instructions shall control.
(v) On each Reporting Date, the Collateral The Document Custodian shall provide a accept only written report to instructions of an Executive Officer, in the Administrative Agent and case of the Borrower or the Servicer (in a form acceptable as listed on Exhibit F-1, as such exhibit may be amended from time to time by the Servicer with notice to the Administrative Agent) identifying each Asset for which it holds Required Asset DocumentsDocument Custodian, the non-complying Assets Agent and each Lender Agent), or a Responsible Officer, in the applicable Review Criteria that any non-complying Asset fails to satisfycase of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Agent, the Servicer, the Document Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Document Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Agent or the Collateral Administrator, as applicable, shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Document Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Document Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Document Custodian hereunder, such party 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 Agent; provided that the Document Custodian shall use not be required to take any action hereunder at the same degree request of care and attention as the Agent, any Secured Parties 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 employs has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Document Custodian requests the consent of the Agent and the Document Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to similar Collateral have declined to consent to the relevant action.
(viii) The Document 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 such party, or the Agent. The Document Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default Event of Default unless the Document Custodian has received written notice from the Agent, Servicer or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Servicer Event of Default,” or “Notice of Servicer Event of Default,” as applicable. In the absence of receipt of such notice, the Document Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default, in each case unless it holds as Collateral Custodianhas actual knowledge of any such occurrence.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Antares Strategic Credit Fund), Loan and Servicing Agreement (Antares Strategic Credit Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Documents delivered by the Seller pursuant to 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 Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In taking and retaining custody of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided provided, however that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further thatprovided, further, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 forty-five (45) days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) 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.
Appears in 2 contracts
Sources: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Duties. On or before From the initial Funding Date, and Closing Date until its resignation or removal pursuant to Section 8.513.10, the Collateral Custodian shall perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller any Loan Party pursuant to Section 3.2 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 Asset DocumentsLoan Documents and the related Loan Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Collateral has Required Loan Documents have been properly executed by each party thereto and has appear to have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect each item listed in the Loan Checklist has been provided to any real or personal property constituting the Related Property, Collateral Custodian and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, Asset number and Obligor name with respect as applicable) is greater than or equal to such Asset is referenced the loan balance listed on the related Asset List and is not a duplicate Asset Loan Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian hard copy (which may be preceded by an electronic file (copy in EXCEL or a comparable formatformat acceptable to the Collateral 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 related Asset List or that otherwise contains the Asset Loan identification number and the name of the Obligor with respect to each related AssetLoan. 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. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) is unable to confirm the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfiedCriteria, the Collateral Custodian shall within one (1) Business Day notify the Servicer and the applicable Loan Party of such determination and provide the Servicer and such Loan Party with a list of the non-complying Assets Loans and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five twenty (20) Business Days to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset a Loan with a any Review Criteria, the Collateral Custodian shall promptly notify the Seller Servicer, the applicable Loan Party and the Administrative Agent of such determination by providing a written report continued non-compliance and such Loan shall cease to be an Eligible Loan until such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfynon-compliance is cured. In addition, if requested in writing in the form of Exhibit D by the Servicer 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 Asset Loan which fails to satisfy a any Review Criteria to the Sellersuch Loan Party. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset DocumentsUnderlying Instruments.
(ii) In taking and retaining custody of the Required Asset DocumentsUnderlying Instruments, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents Underlying Instruments or the instruments therein; and provided further that, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents that are originals shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by offices of the Collateral Custodian in a written notice delivered at least 45 days prior to such changeCustodian. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral Custodian.
(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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Asset Loan for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable any Review Criteria that each such Loan fails to satisfy. The Servicer shall have twenty (20) Business Days after notice or knowledge thereof to correct any non-complying Asset fails compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to satisfybe an Eligible Loan until such non-compliance is cured.
(v) The Collateral 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 Custodian receives instructions from the Servicer or any Loan Party which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) In performing its dutiesOn or promptly following the Closing Date, the Collateral Custodian shall use provide the same degree Collateral Agent, the Administrative Agent, the Borrower and the Servicer access to an electronic database maintained by the Collateral Custodian, which such database shall identify the Required Loan Documents delivered to the Collateral Custodian per the Loan Checklist.
(vii) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall 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 Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 Required Lenders) as requested in order to take any action that the 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. 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 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 and shall not follow any instructions given by the Borrower.
(ix) The Collateral Agent or the Administrative Agent (each acting at the direction of the Required Lenders) may direct the Collateral Custodian in writing to take any action incidental to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 employs 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 similar have declined to consent to the relevant action.
(x) 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral CustodianCustodian or the Administrative Agent 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 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 Custodian may conclusively assume that there is no Event of Default.
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 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files in electronic form delivered by to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Seller pursuant to Section 3.2 in accordance with the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, each Loan Party and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all tangible Collateral Obligation Files in its possession, if any, 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached heretoin Annex A, at the office located at c/o DB Services Americas, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File delivered to it shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that, in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of a written report to Responsible Officer, in the Administrative Agent case of the Borrower or the Servicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) any Loan Party, the Facility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, nonappealablenon-appealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall use dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Servicer Default or Unmatured Servicer 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.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal or replacement pursuant to Section 8.511.05 or Section 11.07, as applicable, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 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 (the “Review Period”), the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists (or evidence thereof) with respect to any real or personal property constituting the Related PropertyCollateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (iI) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as does not match the balance set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one (1) Business Day, and or (iiII) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Administrative Agent and the Servicer of such determination and provide deliver to the Administrative Agent and the Servicer with a certification substantially in the form attached hereto as Exhibit P that includes a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. 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 Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 DocumentsChecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress of the Collateral Custodian located at 1▇▇▇ ▇▇▇▇ ▇▇▇, Florence, South Carolina, 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 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) The Collateral Custodian shall make payments pursuant to On the terms Reporting Date of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: 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 8.513.05 or its resignation pursuant to Section 13.07, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth identified on the Loan Asset ChecklistsChecklist) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists with respect to any real or personal property constituting the Related PropertyUnderlying Collateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that hard copy of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit M) by the Servicer 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 any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretothe address of the Collateral Custodian in Section 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 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every Month (or if such day is not a Business Day, the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”next succeeding Business Day).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VIII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Duties. On or before From the initial Funding Closing Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents in electronic form delivered by the Seller Borrower pursuant to 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 Asset DocumentsLoan Documents and the related Loan Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Collateral has Required Loan Documents, if applicable, have been properly executed by the parties thereto (either the original or a copy, as indicated on the Loan Checklist) and has have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect each item listed in the Loan Checklist has been provided to any real or personal property constituting the Related PropertyCollateral Custodian, and (D) confirming the related Outstanding Asset Balanceoriginal Loan balance (based on a comparison to the note or assignment agreement, Asset number and Obligor name with respect as applicable), is greater than or equal to such Asset is referenced the loan balance listed on the related Asset List and is not a duplicate Asset Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Checklist which contains the related Asset List or that otherwise contains Loan information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related AssetLoan. 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. If, at the conclusion of such review, the Collateral Custodian shall determine that is unable to confirm clauses (iA) the Outstanding Asset Balances or (D) of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic fileReview Criteria, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one (1) Business Day, and or (ii2) any other Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets Loans and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five ten (10) Business Days to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset a Loan with a any Review Criteria, the Collateral Custodian shall promptly notify the Seller Borrower and the Administrative Agent of such determination by providing a written report to such persons identifying, with particularity, each Asset Loan and each of the applicable Review Criteria that such Asset Loan fails to satisfy. In addition, if requested in writing in the form of Exhibit G by the Servicer 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 any Asset Loan which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that that, the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments USActive 57833767.7 therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All original Required Asset Document Loan Documents delivered to the Collateral Custodian, if any, shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress 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 and the Servicer by the Collateral Custodian in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall clearly segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) 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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Asset Loan for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Asset Loan fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 employs 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 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 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 any rights arising with respect to similar Article X. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 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 and the Collateral 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.
(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 it holds this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, 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 other publically filed information shall not constitute actual knowledge of a Responsible Officer of the Collateral Custodian or notice to the Collateral Custodian.
(iv) The parties hereto acknowledge that, in accordance with the Customer Identification Program 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 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 8.511.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 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, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists (or evidence thereof) with respect to any real or personal property constituting the Related PropertyCollateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “"Review Criteria”"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (iI) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one (1) Business Day, and or (iiII) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. 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 Custodian’s 's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 DocumentsChecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Custodian’s 's duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents in physical form shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress of the Collateral Custodian located at The Depository Trust Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ – 5th floor, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: BNY Mellon/Branch Deposit Department, 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 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) The Collateral Custodian shall make payments pursuant to On the terms Reporting Date of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter 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 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
1. The Collateral Custodian, as the duly appointed agent of the Secured Parties, for these purposes, acknowledges that the Borrower shall cause the Investment Manager to deliver, on or prior to the applicable Funding Date (ibut no more than five (5) Business Days after such Funding Date, except as set forth in Section 10.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Approval Request. The Collateral Custodian shall take acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Collateral Custodian from time to time, and retain custody of USActive 31506654.2531506654.28 that the Required Asset Documents delivered by Collateral Custodian will credit each Collateral Obligation File to the Seller pursuant to Section 3.2 Collection Account in accordance with the terms and conditions of this Agreement, all for hereof. Promptly upon 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 Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Investment Manager, the Facility Agent and each Agent.
2. With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains is acting exclusively as the related Asset List or that otherwise contains the Asset identification number and the name custodian of the Obligor with respect Secured Parties, and has no instructions to each related Asset. If, at hold any Collateral Obligation File for the conclusion benefit of any Person other than the Secured Parties and undertakes to perform such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent .
3. The Collateral 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations specified on Schedule III attached hereto, or at such other office as of the Collateral Custodian. Each Collateral Obligation File shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The Collateral Custodian shall make payments pursuant 4. With respect to the terms of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On documents comprising each Reporting DateCollateral Obligation File, the Collateral Custodian shall provide (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a written report to conflict between the Administrative Agent terms of this Agreement and the Servicer (in a form acceptable to written instructions of the Administrative Facility Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyFacility Agent’s written instructions shall control.
5. The Collateral Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Investment Manager, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
6. In the event that (vii) In performing its dutiesthe Borrower, the Facility Agent, any Agent, the Investment Manager, the Collateral Custodian or the Collateral Agent shall use the same degree be served by a third party with any type of care and attention as it employs levy, attachment, writ or court order with respect to similar any Collateral that it holds as Obligation File or a document included within a Collateral Custodian.Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.511.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral 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 Documents Checklist, in each case delivered by the Seller Borrower pursuant to Section 3.2 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 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 (including, in the case of any items in clause (a) of the definition thereof, electronic copies of such items), the related Loan Asset DocumentsSchedule and an electronic copy of the Loan Asset Checklist, the Collateral Custodian Administrator shall review the related Collateral and items in the definition of Required Asset Loan Documents to confirm that that, on their face, (A) such each item listed in the Loan Asset Checklist required to be delivered to the Collateral Administrator pursuant to this Agreement has been properly executed and has no missing or mutilated pages, provided to the Collateral Administrator (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral CustodianAdministrator, in connection with each delivery of applicable Required Asset Loan Documents hereunder to the Collateral CustodianAdministrator, the Servicer shall provide to the Collateral Custodian Administrator an electronic file copy (in EXCEL or a comparable formatformat acceptable to the Collateral Administrator) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset applicable Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Administrator’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 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 Custodian Administrator shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian Administrator shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer (which may be via email) with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after To the conclusion of extent such time period the Servicer has still not cured any non-compliance by an has not been cured within such time period, such Loan Asset with shall be deemed to be a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such determination by providing a written report to such persons identifying, with particularity, each Warranty Loan Asset and each shall no longer be included in the calculation of the applicable Review Criteria that any Borrowing Base hereunder until such Asset fails to satisfydeficiency 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 CustodianAdministrator’s delivery notification to the Servicer of such reportits review of the Review Criteria, the Collateral Custodian Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian and Collateral Administrator shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that neither the Collateral 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 Required Asset Loan Documents or the instruments therein; and provided further thatprovided, further, that the Collateral Custodian’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 items in clause (a) of the definition of Required Asset Document Loan Documents in original form shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress 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 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) The Collateral Custodian shall make payments pursuant to On the terms Reporting Date of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying Collateral Administrator shall identify each Loan Asset for which it holds any Required Asset Documents, the non-complying Assets Loan Documents and the Collateral Administrator shall identify any applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) 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 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 allow the Administrative Agent or the Collateral Agent 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In performing its dutiesthe event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall use rely on and follow the same degree instructions given by the Administrative Agent.
(ii) The parties acknowledge and agree that the Collateral Custodian is not expecting to receive a significant number of care 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 attention 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 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 Custodian or the Collateral Administrator, as applicable, hereunder, neither the Collateral Custodian nor the Collateral Administrator shall 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 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 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.
(iv) Neither the Collateral Custodian nor the Collateral Administrator shall 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 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 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 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 employs with respect may request including, but not limited to, its name, physical address, tax identification number and other information that will help the Collateral Custodian to similar Collateral that it holds identify and verify its identity such as Collateral Custodianorganizational 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 From the Closing Date until its resignation pursuant to Section 11.07 or before the initial Funding Date, and until its removal pursuant to Section 8.511.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 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 (the “Review Period”), the related Loan Asset DocumentsSchedule and an electronic copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists (or evidence thereof) with respect to any real or personal property constituting the Related PropertyCollateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable, and to the extent such note or assignment agreement has been delivered to the Collateral Custodian), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that copy of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. IfNotwithstanding anything herein to the contrary, at the conclusion Collateral Custodian’s obligation to review the Required Loan Documents received by it shall be limited to reviewing such Required Loan Documents based on the information provided on the electronic copy of such reviewthe Loan Asset Checklist. In receiving any Required Loan Documents hereunder, and in maintaining any listing or providing any report or communication with respect to the Required Loan Documents held hereunder, the Collateral Custodian shall determine that be required only to review such Required Loan Documents in accordance with the Review Criteria. Not later than one (i1) Business Day after the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic fileReview Period, the Collateral Custodian shall immediately notify execute and deliver to the Borrower, the Servicer and the Administrative Agent of such discrepancy, and a certification more fully described below (ii) any Review Criteria is not satisfied, the a “Collateral Custodian Certification”) substantially in the form attached hereto as Exhibit L, including an attached exception report (an “Exception Report”), listing any Required Loan Document listed on the Loan Asset Checklist not included in the related Loan File (which Exception Report shall within one Business Day notify include any document that does not satisfy the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfyCriteria). The Servicer shall have five (5) Business Days after receipt thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. 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 Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress of the Collateral Custodian located at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ St., 9th Floor, Chicago, IL 60606 and after December 26, 2017 at its address located at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ St., 9th Floor, Chicago, IL, 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 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) The Collateral Custodian shall make payments pursuant also maintain records of the total number of Loan Files that do not have the Required Loan Documents provided on the Loan Asset Checklist and will forward such total to the terms of the Collateral Agent for inclusion in each Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”)Report.
(v) On each Reporting DateNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall provide 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 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 Custodian shall not be deemed to assume any obligations or liabilities of the Borrower or Collateral Agent hereunder or under any other Transaction Document.
(i) The Collateral Custodian agrees to deliver any Required Loan Documents to the Collateral Agent or Administrative Agent (pursuant to a written report request in the form of Exhibit J), as applicable, as requested by the Administrative Agent 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII.
(ii) The Administrative Agent may direct the Collateral Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 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 and the Servicer Collateral 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.
(iii) The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in a form acceptable 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) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(viiv) The Collateral Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default or Servicer Default, unless the Collateral Custodian has received written notice from a Lender, the Borrower or the Servicer referring to this Agreement, describing such Event of Default, Unmatured Event of Default or Servicer Default and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default” or “Notice of Servicer Default,” as applicable. In performing its dutiesthe absence of receipt of such notice, the Collateral Custodian shall use the same degree may conclusively assume that there is no Default, Event of care and attention as it employs with respect to similar Collateral that it holds as Collateral CustodianDefault or Servicer Default.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Owl Rock Capital 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 8.512.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed and has have no missing or mutilated pages, (B) any UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been mademade as listed on the Loan Asset Checklist, (C) if listed on the Loan Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Related PropertyUnderlying Collateral, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note, assignment agreement or participation interest documentation, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit M) by the Servicer 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 any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 Documentschecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further thatprovided, further, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretothe address of the Collateral Custodian 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 45 30 days (or such shorter notice period as consented to by the Agent) prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every month (or if such day is not a Business Day, the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”next succeeding Business Day).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent (who will provide each Lender with a copy promptly upon receipt thereof) and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs with respect to similar Collateral collateral that it holds as collateral custodian for others.
(i) The Collateral Custodian agrees to cooperate with the Agent and the Trustee and deliver any Required Loan Documents to the 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 Trustee or the 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 any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Trustee, the Servicer or the Borrower which conflict with any instructions received by the Agent, the Collateral Custodian shall rely on and follow the instructions given by the Agent.
(ii) The Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Party 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 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 within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the 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 provides such Secured Party the right to so direct the Collateral Custodian, or the Agent. The Collateral 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 Custodian has knowledge of such matter 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 8.57.5, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 Asset DocumentsLoan Documents and the related Loan Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents delivered to it to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Collateral has Required Loan Documents have been properly executed by each party thereto and has appear to have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect each item listed in the Loan Checklist has been provided to any real or personal property constituting the Related Property, Collateral Custodian and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, Asset number and Obligor name with respect as applicable) is greater than or equal to such Asset is referenced the loan balance listed on the related Asset List and is not a duplicate Asset Loan Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer Collateral Manager shall provide to the Collateral Custodian an electronic file (copy in EXCEL EXCEL, or a comparable format) format acceptable to the Collateral Custodian, of the related Loan Checklist that contains a list of all related Required Loan Documents and whether they require original signatures, the related Asset List or that otherwise contains the Asset Loan identification number and the name of the Obligor with respect to each related AssetLoan. 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. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) us unable to confirm the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfiedCriteria, the Collateral Custodian shall within one (1) Business Day notify the Servicer Collateral Manager and the Borrower of such determination and provide the Servicer Collateral Manager and the Borrower with a list of the non-complying Assets Loans and the applicable Review Criteria that they fail to satisfy. The Servicer Collateral Manager shall have five twenty (20) Business Days to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer Collateral Manager has still not cured any non-compliance by an Asset a Loan with a any Review Criteria, the Collateral Custodian shall promptly notify the Seller Collateral Manager, Borrower and the Administrative Agent of such determination by providing a written report continued non-compliance and such Loan shall cease to be an Eligible Loan until such persons identifying, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfynon-compliance is cured. In addition, if requested in writing in the form of Exhibit E by the Servicer Collateral 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 Asset Loan which fails to satisfy a any Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset DocumentsUnderlying Instruments.
(ii) In taking and retaining custody of the Required Asset DocumentsUnderlying Instruments, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents Underlying Instruments or the instruments therein; and provided further that, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Underlying Instruments that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoits offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇.▇., or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change▇▇▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral Custodian.
(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 Custodian shall provide a written report to the Administrative Agent and the Servicer Collateral Manager (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Asset Loan for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable 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-complying Asset fails compliance with any Review Criteria. To the extent such non-compliance has not been cured within such time period, such Loan shall cease to satisfybe an Eligible Loan until such non-compliance is cured.
(v) The Collateral 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 Custodian receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vi) The Collateral Custodian shall, promptly upon its actual receipt of a Borrowing Base Certificate from the Collateral Manager on behalf of the Borrower, re-calculate the Borrowing Base and, if the Collateral Custodian’s calculation does not correspond with the calculation provided by the Collateral Manager on such Borrowing Base Certificate, deliver such calculation to each of the Administrative Agent, Borrower and Collateral Manager within one (1) day of receipt by the Collateral Custodian of such Borrowing Base Certificate. The Collateral Custodian shall also make required calculations for its Payment Duties 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. 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 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 report in the manner specified, and in accordance with the priorities established, in Section 2.7 or Section 2.8, as applicable.
(vii) The Collateral Custodian 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 Custodian 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 Custodian 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 Custodian (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 Custodian 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 Custodian (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 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 its request therefor, the Collateral Custodian may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Custodian 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 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.
(x) The Collateral 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 Custodian by the Borrower as may be reasonably required by the Collateral Custodian.
(xi) The Collateral 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.
(xii) The Collateral Custodian shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral 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.
(xiii) The Collateral 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 Custodian shall use the same a similar degree of care and attention as it employs with respect to similar Collateral collateral that it holds as collateral custodian for others and (B) all calculations made by the Collateral Custodian pursuant to this Section 7.2(b) using information that is not routinely maintained by the Collateral Custodian, including EBITDA, Assigned Value and Unrestricted Cash of any Obligor shall be made using such amounts as provided by the Administrative Agent, Controlling Lender, Borrower or the Collateral Manager to the Collateral Custodian.
(xv) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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.
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 8.511.05 or Section 11.07, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 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, the related Loan Asset DocumentsSchedule 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 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 related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists (or evidence thereof) with respect to any real or personal property constituting the Related PropertyCollateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List Schedule, and whether there is not a duplicate 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 Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset 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 Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Servicer and the Administrative Agent of such determination and provide the Servicer and the Administrative Agent with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. 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 Custodian’s 's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 DocumentsChecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Custodian’s 's duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress of the Collateral Custodian located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) The Collateral Custodian shall make payments pursuant to On the terms Reporting Date of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative Agent, the Servicer and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral 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 8.512.05, or the payment in full of all Obligations and the termination of all Commitments hereunder, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral 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 Documents Checklist, in each case delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five 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), the related Loan Tape and an electronic copy of the Loan Asset DocumentsChecklist, the Collateral Custodian Administrator shall review the related Collateral and items in the definition of Required Asset Loan Documents to confirm that that, on their face, (A) such each item listed in the Loan Asset Checklist required to be delivered to the Collateral Administrator pursuant to this Agreement has been properly executed and has no missing or mutilated pages, provided to the Collateral Administrator (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral CustodianAdministrator, in connection with each delivery of applicable Required Asset Loan Documents hereunder to the Collateral CustodianAdministrator, the Servicer shall provide to the Collateral Custodian Administrator an electronic file copy (in EXCEL or a comparable formatformat acceptable to the Collateral Administrator) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset applicable Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Administrator’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 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 Custodian Administrator shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian Administrator shall within one three Business Day Days notify the Servicer of such determination and provide the Servicer (which may be via email) with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after To the conclusion of extent such time period the Servicer has still not cured any non-compliance by an has not been cured within such time period, such Loan Asset with shall be deemed to be a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such determination by providing a written report to such persons identifying, with particularity, each Warranty Loan Asset and each shall no longer be included in the calculation of the applicable Review Criteria that any Borrowing Base hereunder until such Asset fails to satisfydeficiency is cured. In addition, if requested in writing (in the form of Exhibit L) by the Servicer and approved by the Administrative Agent within ten 10 Business Days of the Collateral CustodianAdministrator’s delivery notification to the Servicer of such reportits review of the Review Criteria, the Collateral Custodian Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian and Collateral Administrator shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that neither the Collateral Custodian nor the Collateral Administrator makes no any representations as to to, and shall be AmericasActive:18709990.5 responsible for, the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’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 Asset Document original promissory notes actually delivered to the Collateral Custodian shall be kept in fire resistant vaults▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, rooms or cabinets at the locations specified on Schedule Level “C” – Securities Vault, New York, NY 10022, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, OSCF LENDING III attached heretoSPV, 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 45 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 Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All 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 clearly segregated 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 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 allow the Administrative Agent or the Collateral Agent 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(vii) 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 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 Custodian or the Collateral Administrator, as applicable, hereunder, neither the Collateral Custodian nor the Collateral Administrator shall 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 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.
(ix) Neither the Collateral Custodian nor the Collateral Administrator shall 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 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 matter hereunder, including an Event of Default, unless written notice thereof is received by it.
(x) With respect to any notices, reports, requests for waiver, consent requests or any other documents requests relating to corporate actions affecting any Bonds and Equity Securities (together, the “Permitted Non-Loan Corporate Actions”), the delivery of such shall be made solely via Citibank’s corporate action notification system or instruments 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.
(iv) The , and subject to the Collateral Custodian shall make payments 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 terms delivery of such information to be included in the Monthly Servicing Report in accordance with Section 2.9 and Section 2.10 shall deliver a draft of such Payment Date Report not later than the day that is four (the “Payment Duties”).
(v4) On each Reporting Date, the Collateral Custodian shall provide a written report Business Days prior to the Administrative Agent applicable Payment Date to the Borrower and the Servicer (in and, following the delivery of a form acceptable Notice of Exclusive Control, the Collateral Agent and the Servicer) for the Servicer’s (or Collateral Agent’s, as applicable) review. The parties acknowledge and agree that the Servicer shall provide, and the Collateral Administrator shall have no duty or responsibility to determine, the underlying information (or perform the underlying calculations) provided to it. 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) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) 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.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. On The Collateral Manager shall take or before cause to be taken all such actions as may be necessary or advisable to manage, service, administer and collect on the initial Funding DateCollateral Portfolio from time to time, all in accordance with Applicable Law and until its removal pursuant the Collateral Management Standard. Prior to the delivery of a Collateral Manager Termination Notice, but subject to the terms of this Agreement (including, without limitation, Section 8.56.04), the Collateral Custodian shall perform on behalf Manager has the sole and exclusive authority to make any and all decisions with respect to the Collateral Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Administrative Agent and Collateral Manager shall include the Secured Parties, the following duties and obligationsfollowing:
(i) The supervising the Collateral Portfolio, including communicating with Obligors, considering amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent (who will provide each Lender with a copy promptly upon receipt thereof) and each Lender (with a copy to the Collateral Agent and the Collateral Custodian) in respect of the servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent or any Lender may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent (who will provide each Lender with a copy promptly upon receipt thereof), the Collateral Agent or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender, the Collateral Custodian shall take or the Collateral Agent may from time to time reasonably request;
(v) identifying each Collateral Obligation in its internal servicing records to reflect the ownership of such Collateral Obligation by the Borrower;
(vi) notifying the Administrative Agent and retain custody each Lender of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Collateral Obligation (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect; ‑145‑
(vii) using its commercially reasonable efforts to maintain the perfected security interest of the Required Asset Documents delivered by the Seller pursuant to Section 3.2 in accordance with the terms and conditions of this AgreementCollateral Agent, all for the benefit of the Secured Parties Parties, in the Collateral Portfolio;
(viii) directing the Account Bank to convert into Dollars any amounts on deposit in the Canadian Dollar Account, the Euro Account and/or the GBP Account, as applicable, and subject any other amounts denominated in an Eligible Currency other than Dollars, in each case, to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents extent necessary to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In taking and retaining custody of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(iv) The Collateral Custodian shall make all payments pursuant to the terms of the Monthly Report in accordance with Section 2.9 and 2.04;
(ix) directing the sale or substitution of Collateral Portfolio in accordance with Section 2.10 (the “Payment Duties”)2.07.
(vx) On each Reporting Dateproviding administrative assistance to the Borrower with respect to the purchase and sale of and payment for the Collateral Obligations;
(xi) instructing the Obligors and the administrative agents on the Collateral Obligations to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(xii) delivering the Collateral Obligation Files and the Collateral Obligation Tape to the Collateral Custodian;
(xiii) preparing and delivering to the Borrower, the Collateral Custodian Agent and the Administrative Agent on each Measurement Date (including promptly, but in any event within five (5) Business Days, following the date on which a Responsible Officer of the Borrower, the Collateral Manager or the Equityholder has actual knowledge of the occurrence of any Revaluation Event (including a Material Modification)) (or in the case of a Measurement Date that is a Determination Date, on the related Reporting Date) a Borrowing Base Certificate setting forth the calculation of each Borrowing Base as of such Measurement Date; and
(xiv) complying with such other duties and responsibilities as may be required of the Collateral Manager by this Agreement. It is acknowledged and agreed that in circumstances in which a Person other than the Borrower or the Collateral Manager acts as lead agent with respect to any Collateral Obligation, the Collateral Manager shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Underlying Instruments has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and agreed that the performance by the Collateral Manager of its duties hereunder shall be limited insofar as such performance would conflict with or result in a breach of any of the express terms of the related Underlying Instruments; provided that the Collateral Manager shall (a) provide a prompt written report notice to the Administrative Agent and the Servicer (in who will provide each Lender with a form acceptable to the Administrative Agentcopy promptly upon receipt thereof) identifying each Asset for which it holds Required Asset Documentsupon becoming aware of such conflict or breach, the non-complying Assets and the applicable Review Criteria (b) have determined that any non-complying Asset fails to satisfy.
(vi) In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs with respect to similar Collateral there is no other commercially reasonable performance that it holds could render consistent with the express terms of the Underlying Instruments which would result in all or a portion of the servicing duties being performed in accordance with this Agreement, and (c) undertake all commercially reasonable efforts to mitigate ‑146‑ the effects of such non‑performance including performing as Collateral Custodianmuch of the servicing duties as possible and performing such other commercially reasonable and/or similar duties consistent with the terms of the Underlying Instruments.
Appears in 1 contract
Sources: Loan and Servicing Agreement (MSD Investment Corp.)
Duties. On or before From the initial Funding Date, and Original Closing Date until its removal pursuant to Section 8.512.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists with respect to any real or personal property constituting the Related Property, Underlying Collateral is included and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which -148- contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit N) by the Servicer 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 any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III 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 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every month (or if such day is not a Business Day, the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”next succeeding Business Day).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable -149- to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree of care and attention as it employs with respect to similar Collateral that it holds as 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.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Business Development Corp of America)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.57.8, the Collateral Document Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The As Document Custodian of any Underlying Instruments for a Collateral Obligation hereunder to the extent such Underlying Instruments are received and held by the Document Custodian (the “Custodial Documents”), the Document Custodian shall take accept and retain custody of the Required Asset Custodial Documents delivered to it by the Seller pursuant to 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 Business Days of its receipt of any Required Asset Documents, Borrower (or the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth Manager on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”its behalf). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents Underlying Instruments and related Loan Checklist for a Collateral Obligation hereunder to the Collateral Document Custodian, the Servicer Collateral Manager shall provide to the Collateral Document Custodian a Loan Checklist that contains a list of all Underlying Instruments and an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains Collateral Obligation identification number, the Asset identification number original principal balance of such Collateral Obligation and the name of the Obligor with respect to each such related Asset. If, at the conclusion of Collateral Obligation and such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents other information with respect to is less than thereto as set forth on the electronic file, the Collateral Document Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer reasonably may require in connection with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfyits duties hereunder. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In taking and retaining custody of the Required Asset Documents, the Collateral Document Custodian shall be deemed to be acting as the agent on behalf of the Administrative Collateral Agent and the Secured Parties; provided that the Collateral Document Custodian makes no representations as to the existence, perfection or priority of any Lien lien on the Required Asset Documents Loan Assets or the instruments thereinCustodial Documents; and provided further that, that the Collateral Document Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) . All Required Asset Custodial Documents that are delivered to the Document Custodian shall be kept in fire resistant vaultsdelivered to U.S. Bank National Association at its document custody office located at ▇▇▇▇ ▇▇▇▇ ▇▇▇, rooms or cabinets at the locations specified on Schedule III attached heretoFlorence, South Carolina 29501, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, or at such other office as shall be specified to the Administrative Agent Agent, the Collateral Agent, the Collateral Manager and the Borrower by the Collateral Document Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Custodial Documents that are originals or copies shall be kept in fire resistant vaults, rooms or cabinets at such offices and placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Custodial Documents that are originals or copies shall be clearly segregated from any other documents or instruments maintained by the Document Custodian. The Document Custodian shall have no obligation to review or monitor any Custodial Documents or the information provided on the Loan Checklist or electronic file provided hereunder but shall only be required to hold the Custodial Documents in safekeeping. In connection with each delivery of Custodial Documents hereunder to the Document Custodian, the Collateral CustodianManager shall provide to the Document Custodian a copy of the Loan Asset Schedule together with the electronic file required above.
(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”).
(vii) On a monthly basis (concurrently with the delivery of each Reporting DateCollateral Report), the Collateral Document Custodian shall provide a written report to the Collateral Agent, the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) Collateral Manager identifying for each Loan Asset for which it holds Required Asset Custodial Documents the Collateral Obligation identification number, the original principal balance of such Collateral Obligation and the name of the Obligor with respect to such related Collateral Obligation.
(iii) Notwithstanding any provision to the contrary elsewhere in the Loan Documents, the non-complying Assets Document 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 applicable Review Criteria 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 non-complying Asset fails discretion hereunder and shall have no investment or management responsibility. The Document Custodian shall not be deemed to satisfyassume any obligations or liabilities of the Borrower or Collateral Manager hereunder or under any other Loan Document.
(vii) In performing its dutiesThe Document Custodian agrees to cooperate with the Controlling Parties (through the Administrative Agent) and the Collateral Agent and deliver any Custodial Documents to the Collateral Agent, Controlling Parties, the Collateral Custodian shall use Manager or the same degree Borrower (pursuant to a written request in the form of care and attention Exhibit I), as it employs applicable, as requested in order to take any action that the Controlling Parties deem necessary or desirable in order for the Collateral Agent or the Controlling Parties 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 any rights arising with respect to similar Article VI. In the event the Document Custodian receives instructions from the Collateral Agent, the Collateral Manager or the Borrower which conflict with any instructions received by the Controlling Parties, the Document Custodian shall rely on and follow the instructions given by the Controlling Parties (through the Administrative Agent).
(ii) The Controlling Parties (through the Administrative Agent) may direct the Document Custodian to take any action incidental to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Document Custodian hereunder, the 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 Controlling Parties; provided that, the Document Custodian shall not be required to take any action hereunder at the request of the Controlling Parties, any Secured Party 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 Controlling Parties and the Document Custodian does not receive a consent (either positive or negative) from the Controlling Parties within 10 Business Days of its receipt of such request, then the Controlling Parties shall be deemed to have declined to consent to the relevant action.
(iii) The Document 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 it holds as Collateral this Agreement provides such Secured Party the right to so direct the Document Custodian or the Controlling Parties. The Document Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless an Administrative Officer of the Document Custodian has knowledge of such matter or written notice thereof is received by the Document Custodian.
Appears in 1 contract
Sources: Credit Agreement (AB Private Credit Investors Corp)
Duties. On The Servicer shall take or before cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the initial Funding DateCollateral Portfolio from time to time, and until its removal pursuant to Section 8.5all in accordance with Applicable Law, the Credit and Collection Policy (if Solar Senior Capital is the Servicer) and the Servicing Standard. Prior to the occurrence of a Servicer Replacement Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Custodian shall perform on behalf Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Administrative Agent and Servicer shall include the Secured Parties, the following duties and obligationsfollowing:
(i) The supervising the Collateral Portfolio, including communicating with Obligors, executing amendments, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent and each Lender Agent (with a copy to the Collateral Agent and the Collateral Custodian shall take and retain custody the Backup Servicer) in respect of the Required servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent, the Backup Servicer or any Lender Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, each Lender Agent, the Collateral Agent, the Backup Servicer or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender Agent, Collateral Custodian, the Backup Servicer or the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset Documents delivered clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Seller Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to Section 3.2 in accordance with the terms and conditions of this Agreement;
(vi) notifying the Administrative Agent, all the Backup Servicer and each Lender Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) notifying the Administrative Agent and each Lender Agent of any change to the Credit and Collection Policy;
(viii) maintaining the perfected first priority security interest of the Collateral Agent, for the benefit of the Secured Parties and subject Parties, in the Collateral Portfolio;
(ix) maintaining the Loan Asset File with respect to the Lien thereon in favor Loan Assets included as part of the Administrative Agent Collateral Portfolio; provided that, so long as agent for the Secured Parties. Within five Business Days of its receipt Servicer is in possession of any Required Asset Loan Documents, the Collateral Custodian shall review the related Collateral and Servicer will hold such Required Asset Loan Documents to confirm that in a fireproof safe or fireproof file cabinet;
(Ax) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by directing the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder Agent to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In taking and retaining custody of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Servicing Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).2.04;
(vxi) On each Reporting Datedirecting the sale or substitution of Collateral Portfolio in accordance with Section 2.07;
(xii) providing assistance to the Borrower with respect to the Purchase and Contribution of and payment for the Loan Assets;
(xiii) instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(xiv) delivering the Loan Asset Files and the Loan Asset Schedule to the Collateral Custodian; and
(xv) complying with such other duties and responsibilities as may be required of the Servicer by this Agreement. It is acknowledged and agreed that in circumstances in which a Person other than the Borrower, the Collateral Custodian Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such performance would conflict with or result in a breach of any of the express terms of the related Loan Agreements; provided that the Servicer shall (a) provide a prompt written report notice to the Administrative Agent and the Backup Servicer upon becoming aware of such conflict or breach, (b) have determined that there is no other commercially reasonable performance that it could render consistent with the express terms of the Loan Agreements which would result in all or a form acceptable portion of the servicing duties being performed in accordance with this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the effects of such non-complying Assets performance including performing as much of the servicing duties as possible and performing such other commercially reasonable or similar duties consistent with the applicable Review Criteria that any non-complying Asset fails to satisfyterms of the Loan Agreements.
(vi) 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.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.511.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 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, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists (or evidence thereof) with respect to any real or personal property constituting the Related PropertyCollateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “"Review Criteria”"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (iI) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one (1) Business Day, and or (iiII) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying non‑complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance non‑compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. 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 Custodian’s 's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 DocumentsChecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Custodian’s 's duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents in physical form shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress of the Collateral Custodian located at The Depository Trust Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ – 5th floor, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: BNY Mellon/Branch Deposit Department, 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 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) The Collateral Custodian shall make payments pursuant to On the terms Reporting Date of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter 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 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 in accordance with Borrower for each Collateral Obligation listed on the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations specified on Schedule III attached hereto, or at such other office as of the Collateral Custodian. Each Collateral Obligation File shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together marked with an appropriate identifying label (other than documents delivered electronically) and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Servicer, or a written report to Responsible Officer, in the Administrative Agent case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Administrative Agent, the Facility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days after its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Silver Point Specialty Lending Fund)
Duties. On The Servicer shall take or before cause to be taken all such actions as may be necessary or advisable to service, administer and collect on the initial Funding DateCollateral Portfolio from time to time, and until its removal pursuant to Section 8.5all in accordance with Applicable Law, the Risk and Collection Policies (if CGMSTCG is the Servicer) and the Servicing Standard. Prior to the occurrence of a Servicer Termination Event, but subject to the terms of this Agreement (including, without limitation, Section 6.04), the Servicer has the sole and exclusive authority to make any and all decisions with respect to the Collateral Custodian shall perform on behalf Portfolio and take or refrain from taking any and all actions with respect to the Collateral Portfolio. Without limiting the foregoing, the duties of the Administrative Agent and Servicer shall include the Secured Parties, the following duties and obligationsfollowing:
(i) The supervising the Collateral Portfolio, including communicating with Obligors, negotiating and executing amendments, restatements, supplements and other modifications (including, without limitation, in respect of restructuring agreements, prepackaged plans and other documents related to restructuring arrangements), negotiating and providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;
(ii) maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Administrative Agent and each Lender Agent (with a copy to the Collateral Agent and the Collateral Custodian shall take and retain custody the Backup Servicer) in respect of the Required servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Administrative Agent, the Backup Servicer or any Lender Agent may reasonably request;
(iii) maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the 129 DMSLIBRARY01\32370595.v1 event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;
(iv) promptly delivering to the Administrative Agent, each Lender Agent, the Collateral Agent, the Account Bank, the Backup Servicer, the Collateral Administrator or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Administrative Agent, each Lender Agent, the Account Bank, the Collateral Custodian, the Backup Servicer, the Collateral Administrator or the Collateral Agent may from time to time reasonably request;
(v) identifying each Loan Asset Documents delivered clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Seller Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to Section 3.2 in accordance with the terms and conditions of this Agreement;
(vi) notifying the Administrative Agent, all the Backup Servicer and each Lender Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;
(vii) notifying the Administrative Agent and each Lender Agent of any change to the Risk and Collection Policies;
(viii) maintaining the perfected first priority security interest of the Collateral Agent, for the benefit of the Secured Parties and subject Parties, in the Collateral Portfolio;
(ix) maintaining the Loan Asset File with respect to the Lien thereon in favor Loan Assets included as part of the Administrative Agent Collateral Portfolio; provided that, so long as agent for the Secured Parties. Within five Business Days of its receipt Servicer is in possession of any Required Asset Loan Documents, the Collateral Custodian shall review the related Collateral and Servicer will hold such Required Asset Loan Documents to confirm that in a fireproof safe or fireproof file cabinet;
(Ax) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by directing the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder Agent to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In taking and retaining custody of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Servicing Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).2.04;
(vxi) On each Reporting Datedirecting the sale or substitution of Collateral Portfolio in accordance with Section 2.07;
(xii) providing assistance to the Borrower with respect to the Contribution of and payment for the Loan Assets;
(xiii) instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account established and maintained with the Collateral Agent; 130 DMSLIBRARY01\32370595.v1
(xiv) delivering the Loan Asset Files and the Loan Asset Schedule to the Collateral Custodian;
(xv) taking all actions necessary in establishing the Advance Date Assigned Value, Updated Assigned Value, and Value Adjusted Assigned Value, including, without limitation, taking all actions necessary (including paying the compensation of the Nationally Recognized Valuation Firms) in establishing and maintaining the Scheduled Valuation Process in accordance with Section 6.02(d) below; and
(xvi) complying with such other duties and responsibilities as may be required of the Servicer by this Agreement. It is acknowledged and agreed that in circumstances in which a Person other than the Borrower, the Collateral Custodian Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such performance would conflict with or result in a breach of any of the express terms of the related Loan Agreements; provided that the Servicer shall (a) provide a prompt written report notice to the Administrative Agent and the Backup Servicer upon becoming aware of such conflict or breach, (b) have determined that there is no other commercially reasonable performance that it could render consistent with the express terms of the Loan Agreements which would result in all or a form acceptable portion of the servicing duties being performed in accordance with this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the effects of such non-complying Assets performance including performing as much of the servicing duties as possible and performing such other commercially reasonable or similar duties consistent with the applicable Review Criteria that any non-complying Asset fails to satisfyterms of the Loan Agreements.
(vi) 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.
Appears in 1 contract
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.513.05 or its resignation pursuant to Section 13.07, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth identified on the Loan Asset ChecklistsChecklist) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists with respect to any real or personal property constituting the Related PropertyUnderlying Collateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that hard copy of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit M) by the Servicer 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 any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretothe address of the Collateral Custodian in Section 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 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to CGMS 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) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every Month (or if such day is not a Business Day, the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”next succeeding Business Day).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VIII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Carlyle GMS Finance, Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral The Document Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Document Custodian, as the duly appointed agent of the Secured Parties, for these purposes shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by the Seller pursuant to Section 3.2 in accordance with the terms and conditions of this Agreement, all it 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 Business Days of its receipt of any Required Asset Documents, the each Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth Obligation listed on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect Schedule of Collateral Obligations attached to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectivelyApproval Request or the related Reinvestment Request, the “Review Criteria”)as applicable. In order to facilitate the foregoing review by the Collateral Custodian, The Document Custodian acknowledges that in connection with each delivery of Required any Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL Approval Request or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect Reinvestment Request, additional Collateral Obligation Files may be delivered to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect from time to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documentstime.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Document Custodian, the Document Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Document Custodian shall be deemed to be acting as for the agent purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Document Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset The Document Custodian shall maintain continuous custody of all Collateral Obligation Files delivered to it in its possession and shall reflect in its records -174- the interest of the Secured Parties therein. Each tangible Collateral Obligation File held by the Document Custodian shall be kept in a fire resistant vaultsvalue, rooms room or cabinets at the locations specified on Schedule III attached hereto, or at such other office as cabinet and shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together 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 Agent. All Required Asset Documents The Document Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Document Custodian shall (i) act exclusively as Document Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Agent, the Agent’s written instructions shall control.
(v) On each Reporting Date, the Collateral The Document Custodian shall provide a accept only written report to instructions of an Executive Officer, in the Administrative Agent and case of the Borrower or the Servicer (in a form acceptable as listed on Exhibit F-1, as such exhibit may be amended from time to time by the Servicer with notice to the Administrative Agent) identifying each Asset for which it holds Required Asset DocumentsDocument Custodian, the non-complying Assets Agent and each Lender Agent), or a Responsible Officer, in the applicable Review Criteria that any non-complying Asset fails to satisfycase of the Agent, concerning the use, handling and disposition of the Collateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Agent, the Servicer, the Document Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Document Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Agent or the Collateral Administrator, as applicable, shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Document Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Document Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Document Custodian hereunder, such party 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 Agent; provided that the Document Custodian shall use not be required to take any action hereunder at the same degree request of care and attention as the Agent, any Secured Parties 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 employs has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Document Custodian requests the consent of the Agent and the Document Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to similar Collateral have declined to consent to the relevant action.
(viii) The Document 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 such party, or the Agent. The Document Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default Event of Default unless the Document Custodian has received written notice from the Agent, Servicer or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Servicer Event of Default,” or “Notice of Servicer Event of Default,” as applicable. In the absence of receipt of such notice, the Document Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default, in each case unless it holds as Collateral Custodianhas actual knowledge of any such occurrence.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Antares Strategic Credit Fund)
Duties. On or before From the initial Funding Closing Date, and until its removal pursuant to Section 8.5, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents in electronic form delivered by the Seller Borrower pursuant to 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 Asset DocumentsLoan Documents and the related Loan Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Collateral has Required Loan Documents, if applicable, have been properly executed by the parties thereto (either the original or a copy, as indicated on the Loan Checklist) and has have no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect each item listed in the Loan Checklist has been provided to any real or personal property constituting the Related PropertyCollateral Custodian, and (D) confirming the related Outstanding Asset Balanceoriginal Loan balance (based on a comparison to the note or assignment agreement, Asset number and Obligor name with respect as applicable), is greater than or equal to such Asset is referenced the loan balance listed on the related Asset List and is not a duplicate Asset Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Checklist which contains the related Asset List or that otherwise contains Loan information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related AssetLoan. 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. If, at the conclusion of such review, the Collateral Custodian shall determine that is unable to confirm clauses (iA) the Outstanding Asset Balances or (D) of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic fileReview Criteria, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one (1) Business Day, and or (ii2) any other Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets Loans and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five ten (10) Business Days to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset a Loan with a any Review Criteria, the Collateral Custodian shall promptly notify the Seller Borrower and the Administrative Agent of such determination by providing a written report to such persons identifying, with particularity, each Asset Loan and each of the applicable Review Criteria that such Asset Loan fails to satisfy. In addition, if requested in writing in the form of Exhibit G by the Servicer 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 any Asset Loan which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that that, the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All original Required Asset Document Loan Documents delivered to the Collateral Custodian, if any, shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress of the Collateral Custodian located in Massachusetts or at DTCC Newport Office Center, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 and the Servicer by the Collateral Custodian in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall clearly segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) 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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Asset Loan for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Asset Loan fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 employs 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 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 G), 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article X. In the event the Collateral that it holds as Custodian receives instructions from the Collateral CustodianAgent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
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 8.5, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to 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 Asset DocumentsLoan Documents and the related Loan Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) the Obligor name matches the Loan Checklist, (B) such Collateral Required Loan Documents have been executed (either an original or a copy, as indicated on the Loan Checklist) by each party thereto, (C) each item listed in the Loan Checklist has been properly executed and has no provided to the Collateral Custodian without any missing or mutilated pages, (BD) any UCC and other filings the related original balance (based on a comparison to the note or assignment agreement, as set forth applicable) is equal to the loan balance listed on the Asset Checklistsrelated Loan Tape (such items (A) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and through (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “"Review Criteria”"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer Collateral Manager shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Checklist which contains the related Asset List or that otherwise contains Loan information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related Assetsuch Loan. 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. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances Collateral Custodian is unable to confirm clauses (A) or (D) of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic fileReview Criteria, the Collateral Custodian shall immediately notify the Administrative Agent and the Collateral Manager of such discrepancydiscrepancy within one (1) Business Day, and or (ii) any other Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer Collateral Manager of such determination and provide the Servicer Collateral Manager with a list of the non-complying Assets Loans and the applicable Review Criteria that they fail to satisfy. The Servicer Collateral Manager shall have five twenty (20) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after To the conclusion of extent such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteriahas not been cured within such time period, the Administrative Agent shall notify the Borrower, the Collateral Custodian shall promptly notify Manager, the Seller Collateral Agent and the Administrative Agent of such determination by providing a written report to such persons identifying, with particularity, each Asset and each of the applicable Review Criteria Collateral Custodian that such Asset fails Loan shall be deemed to satisfybe a Warranty Loan 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 G by the Servicer Collateral Manager and approved by the Administrative Agent within ten (10) Business Days of the Collateral Custodian’s 's delivery of such report, the Collateral Custodian shall return any Asset Loan which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Custodian’s 's duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoin Section 5.7(c) hereof, or at such other office as shall be specified to the Administrative Agent and the Collateral Manager by the Collateral Custodian in a written notice delivered at least 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to BDCA and its Affiliates and its Subsidiaries; provided, however, the Collateral Custodian shall segregate any commingled files upon written request of the Administrative Agent and the Borrower.
(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 Custodian shall provide a written report to the Administrative Agent and the Servicer Collateral Manager (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Asset Loan for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Asset 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 be deemed to be a Warranty Loan and shall no longer be included in the calculation of any Borrowing Base hereunder until such deficiency is cured.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 Custodian agrees to cooperate with the Administrative Agent, the Collateral Manager and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent, the Collateral Manager or Administrative Agent (pursuant to a written request in the form of Exhibit G), as it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article X. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, 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.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Business Development Corp of America)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody Custodian, as the duly appointed agent of the Required Secured Parties, for these purposes, acknowledges that the Borrower shall cause the Investment Manager to deliver, on or prior to the applicable Funding Date (but no more than five (5) Business Days after such Funding Date, except as set forth in Section 10.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Documents Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered by to the Seller pursuant Collateral Custodian from time to Section 3.2 time, and that the Collateral Custodian will credit each Collateral Obligation File to the Collection Account in accordance with the terms and conditions of this Agreement, all for hereof. Promptly upon 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 Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Investment Manager, the Facility Agent and each Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains is acting exclusively as the related Asset List or that otherwise contains the Asset identification number and the name custodian of the Obligor with respect Secured Parties, and has no instructions to each related Asset. If, at hold any Collateral Obligation File for the conclusion benefit of any Person other than the Secured Parties and undertakes to perform such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations specified on Schedule III attached hereto, or at such other office as of the Collateral Custodian. Each Collateral Obligation File shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Investment Manager, or a written report to Responsible Officer, in the Administrative Agent case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Facility Agent, any Agent, the Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered otherwiseother than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of the Collateral Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Duties. On or before The Employee will be responsible for the initial Funding Dateperformance of such duties and activities as traditionally carried out by the Chief Financial Officer of a US listed company, including: ·responsibility for the management of the finance and until accounting teams of VNRX and its removal pursuant affiliates (together the “Group”). ·supervising the preparation and filing of quarterly and annual audited accounts and liaising with and supervising the auditors. ·presenting VNRX’s financial results to Section 8.5stakeholders and discussing the company’s prospects to existing and potential investors. ·responsibility for producing Group monthly management accounts. ·taking responsibility for the internal controls and risk management of the Group. ·working closely with the Group CEO to provide leadership and direction. ·capital raising and contract negotiation. ·structuring the Group’s financial arrangements including forward revenue and expense modelling, mergers and acquisitions and liaising with stakeholders such as investors and shareholders. ·such other duties as reasonably requested by the Company, the Collateral Custodian shall perform on behalf VNRX Board of the Administrative Agent and the Secured PartiesDirectors or Group CEO from time to time. THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, the following duties and obligations:
AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR EXERCISED UNLESS (i) The Collateral Custodian shall take A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS WILL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER. AN INVESTMENT IN THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK. HOLDERS MUST RELY ON THEIR OWN ANALYSIS OF THE INVESTMENT AND ASSESSMENT OF THE RISKS INVOLVED. THIS CERTIFIES THAT, for value received ▇▇▇▇▇ ▇▇▇▇▇▇ (the “Holder”), is entitled to subscribe for and retain custody purchase at the Exercise Price (defined below) from VOLITIONRX LIMITED, a Delaware corporation, or its successor entity (collectively the “Corporation”) an amount of the Required Asset Documents delivered by the Seller pursuant common stock equal to Section 3.2 in accordance with One Hundred Eighty-Five Thousand (185,000) shares, subject to the terms and conditions of this Warrant 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 Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In taking and retaining custody of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) 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.
Appears in 1 contract
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 8.512.05, or the payment in full of all Obligations and the termination of all Commitments hereunder, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral 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 Documents Checklist, in each case delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five 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), the related Loan Tape and an electronic copy of the Loan Asset DocumentsChecklist, the Collateral Custodian Administrator shall review the related Collateral and items in the definition of Required Asset Loan Documents to confirm that that, on their face, (A) such each item listed in the Loan Asset Checklist required to be delivered to the Collateral Administrator pursuant to this Agreement has been properly executed and has no missing or mutilated pages, provided to the Collateral Administrator (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral CustodianAdministrator, in connection with each delivery of applicable Required Asset Loan Documents hereunder to the Collateral CustodianAdministrator, the Servicer shall provide to the Collateral Custodian Administrator an electronic file copy (in EXCEL or a comparable formatformat acceptable to the Collateral Administrator) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset applicable Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Administrator’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 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 Custodian Administrator shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian Administrator shall within one three Business Day Days notify the Servicer of such determination and provide the Servicer (which may be via email) with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after To the conclusion of extent such time period the Servicer has still not cured any non-compliance by an has not been cured within such time period, such Loan Asset with shall be deemed to be a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such determination by providing a written report to such persons identifying, with particularity, each Warranty Loan Asset and each shall no longer be included in the calculation of the applicable Review Criteria that any Borrowing Base hereunder until such Asset fails to satisfydeficiency is cured. In addition, if requested in writing (in the form of Exhibit L) by the Servicer and approved by the Administrative Agent within ten 10 Business Days of the Collateral CustodianAdministrator’s delivery notification to the Servicer of such reportits review of the Review Criteria, the Collateral Custodian Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian and Collateral Administrator shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that neither the Collateral 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 Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’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 Asset Document original promissory notes actually delivered to the Collateral Custodian shall be kept in fire resistant vaults▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, rooms or cabinets at the locations specified on Schedule Level “C” – Securities Vault, New York, NY 10022, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, OSCF LENDING III attached heretoSPV, 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 45 30 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) 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.such
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.513.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth identified on the Loan Asset ChecklistsChecklist) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists with respect to any real or personal property constituting the Related PropertyUnderlying Collateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable format) that copy of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit M) by the Servicer 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 any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 Documentschecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretothe address of the Collateral Custodian in Section 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 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) The Collateral Custodian shall make payments pursuant to On the terms 12th calendar day of every month (or if such day is not a Business Day, the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”next succeeding Business Day).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VIII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (SLR Investment Corp.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.512.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required Loan Documents, the related Loan Tape and a hard copy of the Loan Asset DocumentsChecklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists with respect to any real or personal property constituting the Related PropertyUnderlying Collateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Asset List and is not a duplicate Asset Loan Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Tape, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit N) by the Servicer 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 any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 Documentschecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III 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 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to G▇▇▇▇ and its Affiliates and subsidiaries.
(iv) The Collateral Custodian shall make payments pursuant to On the terms Reporting Date of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral 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 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Collateral Asset Documents Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 Borrower for each Collateral Asset listed on the Collateral Asset Schedule. The Collateral Custodian acknowledges that in accordance connection with any Borrowing or Reinvestment Request and the terms and conditions of this Agreementrelated Approval Notice (if applicable), all for additional Collateral Asset Files (specified on the benefit of the Secured Parties and subject applicable Collateral Asset Schedule or supplement to the Lien thereon in favor of Collateral Asset Schedule) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required such delivery of Collateral Asset DocumentsFiles and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower and the Administrative Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Collateral Asset DocumentsFiles, the Collateral Custodian shall be deemed to be acting as for the agent purpose of perfecting the Administrative Agent and Agent’s security interest therein under the Secured Parties; UCC. Except as provided that herein, no Collateral Asset File or other document constituting a part of a Collateral Asset File shall be released from the Collateral Custodian makes no representations as to the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required The Collateral Custodian shall maintain continuous custody of all Collateral Asset Document Files 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 Collateral Asset File which comes into the possession of the Collateral Custodian (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations specified on Schedule III attached hereto, or at such other office as of the Collateral Custodian. Each Collateral Asset File shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Administrative Agent. All Required The Collateral Custodian shall keep the Collateral Asset Documents shall be Files clearly segregated from any other documents or instruments maintained in its files. USActive 57710049.13-127-
(iv) With respect to the documents comprising each Collateral Asset File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Asset File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Collateral CustodianAdministrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the terms of this Agreement shall control.
(ivv) The Collateral Custodian shall make payments pursuant to the terms accept only written instructions of a Responsible Officer of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to Servicer or the Administrative Agent concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Collateral Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyFiles.
(vi) In performing its dutiesthe event that (i) the Borrower, the Administrative Agent, the Servicer or the Collateral Custodian shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Asset File or a document included within a Collateral Asset File or (ii) a third party shall institute any court proceeding by which any Collateral Asset File or a document included within a Collateral Asset File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by Law, continue to hold and maintain all the Collateral Asset Files 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 Collateral Custodian shall use dispose of such Collateral Asset File or a document included within such Collateral Asset File as directed by the same degree Administrative Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral 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 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 or otherwise (unless it employs 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 and the Collateral 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 similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian., or the Administrative Agent. The Collateral 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 Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian. USActive 57710049.13-128-
Appears in 1 contract
Sources: Credit Agreement (Nuveen Churchill Private Capital Income Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 in accordance with Borrower for each Collateral Obligation listed on the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other USActive 58353885.2 than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached hereto, in Annex A or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File shall be placed together marked with an appropriate identifying label (other than documents delivered electronically) and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Servicer, or a written report to Responsible Officer, in the Administrative Agent case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Facility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation -152- USActive 58353885.2 of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.512.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 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 Asset Loan Documents, the related Collateral Obligation Tape and the Document Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Document Checklist) and has have no missing or mutilated pagespages (in the case of electronic copies, “mutilated” shall mean that the pages are illegible) (B) any UCC and other filings (required under the applicable Underlying Instruments have been provided as set forth listed on the Asset Checklists) have been madeDocument Checklist, (C) if listed on the Document Checklist, a copy of an Insurance Policy exists with respect to any real or personal property constituting the Related PropertyUnderlying Collateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, Asset as applicable), Collateral Obligation number and Obligor name name, as applicable, with respect to such Asset Collateral Obligation is referenced on the related Asset List and is not a duplicate Asset Collateral Obligation Tape (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer Collateral Manager shall provide to the Collateral Custodian a copy (which may be an electronic file (in EXCEL or a comparable formatcopy) that of the related Document Checklist which contains the related Asset List or that otherwise contains Collateral Obligation information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related Assetsuch Collateral Obligation. 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 Document Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances original balance of the Collateral Obligation with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileCollateral Obligation Tape, the Collateral Custodian shall immediately notify the Administrative Agent and the Collateral Manager of such discrepancydiscrepancy within one (1) Business Day, and or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer Collateral Manager of such determination and provide the Servicer Collateral Manager with a list of the non-complying Assets non‑complying Collateral Obligations and the applicable Review Criteria that they fail to satisfy. The Servicer Collateral Manager shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance non‑compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested directed in writing (in the form of Exhibit M, which shall include an incumbency certificate for each authorized signer) by the Servicer Collateral 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 any Asset Collateral Obligation which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Loan Documents.. ‑200‑
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents required to be kept in physical form shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretooffice of the Collateral Custodian located at Florence, South Carolina, or at such other office as shall be specified to the Administrative Agent and the Collateral Manager by the Collateral Custodian in a written notice delivered at least 45 30 days (or such shorter notice period as consented to by the Administrative Agent) prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian 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) The Collateral Custodian shall make payments pursuant to 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 terms other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of the Monthly Report in accordance with Section 2.9 foregoing, it is hereby expressly agreed and Section 2.10 (stipulated by the “Payment Duties”)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) On 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 M, which shall include an incumbency certificate for each Reporting Dateauthorized signer), 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall provide a written report rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent is hereby authorized to direct the Collateral Custodian with respect to actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder. With respect to such incidental actions, the Collateral Custodian shall not be required to 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; provided that the Collateral Custodian shall not 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, (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 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 and the Servicer Collateral Custodian does not receive a consent (in a form acceptable 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 Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyrelevant action.
(vi) 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.
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 8.511.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 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, the related Loan Asset DocumentsSchedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists (or evidence thereof) with respect to any real or personal property constituting the Related PropertyCollateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “"Review Criteria”"). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (iI) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one (1) Business Day, and or (iiII) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. 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 Custodian’s 's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 DocumentsChecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Custodian’s 's duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents in physical form shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress 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 and the Servicer by the Collateral Custodian in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) The Collateral Custodian shall make payments pursuant to On the terms Reporting Date of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (AG Twin Brook Capital Income Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files in electronic form delivered by to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Seller pursuant to Section 3.2 in accordance with the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, each Loan Party and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all tangible Collateral Obligation Files in its possession, if any, 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached heretoin Annex A, at the office located at 1▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 55018, Attention: Transfer Agent Team – GDLC Funding II LLC or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File delivered to it in physical form shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided that, in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of a written report to Responsible Officer, in the Administrative Agent case of the Borrower or the Servicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) any Loan Party, the Facility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, non-appealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall use dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Servicer Default or Unmatured Servicer 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.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital Direct Lending Corp)
Duties. On or before From the initial Funding Date, and Closing Date until its removal or replacement pursuant to Section 8.511.05 or Section 11.07, as applicable, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 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, the related Loan Asset DocumentsSchedule and an electronic copy of the Loan Asset Checklist, the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) copies of such Collateral has Required Loan Documents have been properly executed and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth required by the Required Loan Documents and identified on the Loan Asset ChecklistsChecklist) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists (or evidence thereof) with respect to any real or personal property constituting the Related PropertyCollateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that copy of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (iI) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as does not match the balance set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one (1) Business Day, and or (iiII) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Administrative Agent and the Servicer of such determination and provide deliver to the Administrative Agent and the Servicer with a certification substantially in the form attached hereto as Exhibit P that includes a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. 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 Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 DocumentsChecklist 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 documents to the Servicer’s data room. In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian[Reserved].
(iv) The Collateral Custodian shall make payments pursuant to On the terms Reporting Date of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree of care and attention as it employs with respect to similar Collateral that it holds as 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 Custodian shall not be deemed to assume any obligations or liabilities of the Borrower or Servicer hereunder or under any other Transaction Document.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Antares Private Credit Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody Custodian, as the duly appointed agent of the Required Secured Parties, for these purposes, acknowledges that the Borrower shall cause the Investment Manager to deliver, on or prior to the applicable Funding Date (but no more than five (5) Business Days after such Funding Date, except as set forth in Section 10.2210.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Documents Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered by to the Seller pursuant Collateral Custodian from time to Section 3.2 time, and that the Collateral Custodian will credit each Collateral Obligation File to the Collection Account in accordance with the terms and conditions of this Agreement, all for hereof. Promptly upon 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 Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Investment Manager, the Administrative Agent and each Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains is acting exclusively as the related Asset List or that otherwise contains the Asset identification number and the name custodian of the Obligor with respect Secured Parties, and has no instructions to each related Asset. If, at hold any Collateral Obligation File for the conclusion benefit of any Person other than the Secured Parties and undertakes to perform such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations specified on Schedule III attached hereto, or at such other office as of the Collateral Custodian. Each Collateral Obligation File shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Administrative Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Administrative Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Investment Manager, or a written report to Responsible Officer, in the Administrative Agent and the Servicer (in a form acceptable to case of the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, concerning the non-complying Assets use, handling and disposition of the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Administrative Agent, any Agent, the Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Administrative Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral 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 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 or otherwise (unless it employs 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 and the Collateral 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 similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of the Collateral Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 in accordance with Borrower for each Collateral Obligation listed on the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire resistant vaults, rooms or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached hereto, in Annex A or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents ; provided that, any Collateral Obligation File that comes into the possession of the Collateral Agent in the form of a physical promissory note shall be placed together maintained in fire-resistant vaults. Each Collateral Obligation File shall be marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Servicer, or a written report to Responsible Officer, in the Administrative Agent case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Facility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or expense hereunder or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral 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 Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Vista Credit Strategic Lending Corp.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal and/or replacement pursuant to Section 8.511.05 or Section 11.07, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 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, the related Loan Asset DocumentsSchedule 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 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 related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists (or evidence thereof) with respect to any real or personal property constituting the Related PropertyCollateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List Schedule, and whether there is not a duplicate 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 Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset 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 Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Servicer and the Administrative Agent of such determination and provide the Servicer and the Administrative Agent with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. 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 Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 DocumentsChecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress of the Collateral Custodian located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) The Collateral Custodian shall make payments pursuant to On the terms Reporting Date of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative Agent, the Servicer and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations; provided, however, that any such Collateral Custodian duties with respect to Collateral to be held in an electronic form shall instead be performed by the Collateral Administrator:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 in accordance with Borrower for each Collateral Obligation listed on the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request or the related Reinvestment Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request or Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached hereto, in Annex A or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Servicer, or a written report to Responsible Officer, in the Administrative Agent case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Facility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Stellus Private Credit BDC)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.57.5, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Documents delivered by the Seller pursuant to 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 Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents[Reserved].
(ii) In taking and retaining custody of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein[Reserved].
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(iv) The Collateral Custodian shall make payments pursuant to the terms of the Monthly Report in accordance with Section 2.9 2.7 and Section 2.10 2.8 (the “Payment Duties”).
(viv) On each Reporting Date, the The Collateral Custodian shall provide a written daily report to the Administrative Agent and the Servicer Collateral Manager of (in x) all deposits to and withdrawals from the Accounts for each Business Day and the outstanding balances as of the end of each Business Day, and (y) a form acceptable to report of settled trades for each Business Day.
(v) On or before the Administrative Agent) identifying each Asset for which it holds Required Asset DocumentsEffective Date, the non-complying Assets Collateral Custodian shall accept from the Collateral Manager delivery of the information required to be set forth in the Borrowing Base Certificate in hard copy and on computer tape; provided that the computer tape is in an MS DOS, PC readable ASCII format or other format to be agreed upon by the Collateral Custodian and the applicable Review Criteria that any non-complying Asset fails Collateral Manager on or prior to satisfyclosing.
(vi) On each Monthly Reporting Date, the Collateral Manager shall deliver to the Collateral Custodian the loan tape, which shall include but not be limited to the following information: (x) for each Loan, the name and number of the related Obligor, the collection status, the loan status, an indication of whether or not such Loan is an Eligible Loan, the date of each Scheduled Payment and the Outstanding Balance, (y) the Borrowing Base and (z) the Adjusted Borrowing Value of each Loan and such other information, including any information related to an Approved Foreign Currency, as may be reasonably required for the Collateral Custodian to perform its duties hereunder (such loan tape, the “Tape”). The Collateral Custodian shall accept delivery of the Tape.
(vii) Prior to the related Quarterly Payment Date, the Collateral Custodian shall review the Quarterly Payment Date Report to ensure that it is complete on its face and, based solely on the information provided in the Tape, that the following items in such Quarterly Payment Date Report have been accurately calculated, if applicable, and reported: (A) the Borrowing Base, (B) the Collateral Custodian Fee, (C) the Adjusted Borrowing Value of each Loan and (D) Availability. The Collateral Custodian by a separate written report shall notify the Administrative Agent and the Collateral Manager of any disagreements with the Quarterly Payment Date Report based on such review not later than the Business Day preceding such Quarterly Payment Date to such Persons.
(viii) In performing its duties, all calculations made by the Collateral Custodian pursuant to this Section 7.2(b) using Advance Rate, EBITDA and Unrestricted Cash of any Obligor (or, with respect to Advance Rate, Loan) shall be made using such amounts and an Approved Foreign Currency as provided by the Borrower or the Collateral Manager to the Collateral Custodian on the Tape.
(ix) In performing its duties, the Collateral Custodian shall use the same a commercially reasonable degree of care and attention as it employs required or expected with respect to the provision of similar Collateral that it holds as Collateral Custodianservices and similar loans.
Appears in 1 contract
Sources: Loan, Security and Collateral Management Agreement (Phillip Street Middle Market Lending Fund LLC)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain electronic custody of all electronic Collateral Asset Files delivered to it by, or on behalf of, the Required Borrower for each Collateral Asset. The Collateral Custodian acknowledges that in connection with any Reinvestment, additional Collateral Asset Documents Files may be delivered by the Seller pursuant to 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 Collateral Custodian from time to time. Promptly upon the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required such delivery of Collateral Asset DocumentsFiles and without any review, the Collateral Custodian shall review send notice of such receipt to the related Collateral Manager, the Borrower and Required the Administrative Agent.
(ii) With respect to each Collateral Asset Documents to confirm that (A) such Collateral File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Collateral Asset DocumentsFiles, the Collateral Custodian shall be deemed to be acting for the purpose of perfecting the Administrative Agent’s security interest therein under the UCC. Except as provided herein, no Collateral Asset File or other document constituting a part of a Collateral Asset File shall be released from the agent possession of the Collateral Custodian.
(iii) The Collateral Custodian shall maintain continuous custody of all Collateral Asset Files in electronic form in its possession in accordance with customary standards for such custody and shall reflect in its records the interest of the Secured Parties therein. Notwithstanding anything to the contrary herein, any promissory notes which comes into the possession of the Collateral Custodian shall only be maintained by the Collateral Custodian or an Affiliate thereof if a form of amendment to this Agreement or a separate document custody agreement satisfactory to the Collateral Custodian has been executed and arrangement has been made for the payment of its fees in connection with such amendment.
(iv) With respect to the documents comprising each Collateral Asset File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Asset File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the terms of this Agreement shall control.
(v) The Collateral Custodian shall accept only written instructions of a Responsible Officer of the Collateral Manager or the Administrative Agent concerning the use, handling and disposition of the Collateral Asset Files.
(vi) In the event that (i) the Borrower, the Administrative Agent, the Collateral Manager or the Collateral Custodian shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Asset File or a document included within a Collateral Asset File or (ii) a third party shall institute any court proceeding by which any Collateral Asset File or a document included within a Collateral Asset File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by Law, continue to hold and maintain all the Collateral Asset Files 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 Collateral Custodian shall dispose of such Collateral Asset File or a document included within such Collateral Asset File as directed by the Administrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian to take any such reasonable incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral 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 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 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 and the Collateral 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.
(viii) The Collateral Custodian shall not be liable for any action or inaction taken, suffered or omitted by it in accordance with the request or direction of any Secured Parties; provided that Party or the Administrative Agent (upon which the Collateral Custodian makes no representations as shall be entitled to the existence, perfection conclusively rely). The Collateral Custodian shall not be deemed to have notice or priority knowledge of any Lien on the Required Asset Documents or the instruments therein; and provided further thatmatter hereunder, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document shall be kept in fire resistant vaultsincluding an Event of Default, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by unless a Responsible Officer of the Collateral Custodian in a has actual knowledge of such matter or written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such thereof is received by a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by Responsible Officer of the Collateral Custodian.
(ivix) The Collateral Custodian shall make payments pursuant to prepare the terms of the Monthly Report Collateral Reports in accordance with Section 2.9 12.04 and shall distribute funds in accordance with the Payment Date Report delivered with respect to each month in which a Payment Date occurs in accordance with Section 2.10 (the “Payment Duties”)2.13.
(vx) On each Reporting Date, None of the Collateral Custodian or Securities Intermediary shall provide a written report be under any obligation (i) to monitor, determine or verify the unavailability or cessation of Term SOFR (or other applicable Base Rate, Daily SOFR, SOFR, ▇▇▇▇▇, Daily Simple ▇▇▇▇▇, EURIBOR, BBSW, Alternative Currency Daily Rate, Alternative Currency Term Rate or Canadian Prime Rate), or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any event that would require the adoption of any such rate or alternative rate, (ii) to select, identify or designate any Base Rate, Daily SOFR, SOFR, ▇▇▇▇▇, Daily Simple ▇▇▇▇▇, EURIBOR, BBSW, Alternative Currency Daily Rate, Alternative Currency Term Rate or Canadian Prime Rate, or other successor or replacement benchmark index, or determine whether any conditions to the Administrative Agent and designation of such a rate have been satisfied, (iii) to select, identify or designate any modifier or adjustment to any replacement or successor index, or (iv) to determine whether or what Conforming Changes are necessary or advisable, if any, in connection with any of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) In performing its duties, foregoing. None of the Collateral Custodian or Securities Intermediary shall use be liable for any inability, failure or delay on its part to perform any of its duties set forth in this Indenture or any other Loan Document as a result of the same degree unavailability of care the Screen Rate component or related interpolation rate component of Term SOFR (or any other applicable Base Rate, Daily SOFR, SOFR, ▇▇▇▇▇, Daily Simple ▇▇▇▇▇, EURIBOR, BBSW, Alternative Currency Daily Rate, Alternative Currency Term Rate or Canadian Prime Rate) and attention absence of a designated replacement Base Rate, including as it employs with respect to similar a result of any inability, delay, error or inaccuracy on the part of any other transaction party, including without limitation the Collateral that it holds as Collateral CustodianManager, in providing any direction, instruction, notice or information required or contemplated by the terms of this Agreement or any other Loan Document and reasonably required for the performance of such duties.
Appears in 1 contract
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files in electronic form delivered by to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Seller pursuant to Section 3.2 in accordance with the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, each Loan Party and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all tangible Collateral Obligation Files in its possession, if any, 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached heretoin Annex A, at the office located at c/o DB Services Americas, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File delivered to it shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided that, in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of a written report to Responsible Officer, in the Administrative Agent case of the Borrower or the Servicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) any Loan Party, the Facility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files that are the subject of such proceedings pending a final, non-appealable order of a court of competent jurisdiction permitting or directing disposition thereof. Upon final determination of such court, the Collateral Custodian shall use dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Servicer Default or Unmatured Servicer 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.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 4, 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 8.512.05, or the payment in full of all Obligations and the termination of all Commitments hereunder, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral 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 Documents Checklist, in each case delivered by the Seller Borrower pursuant to Section 3.2 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 and subject to the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within five 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), the related Loan Tape and an electronic copy of the Loan Asset DocumentsChecklist, the Collateral Custodian Administrator shall review the related Collateral and items in the definition of Required Asset Loan Documents to confirm that that, on their face, (A) such each item listed in the Loan Asset Checklist required to be delivered to the Collateral Administrator pursuant to this Agreement has been properly executed and has no missing or mutilated pages, provided to the Collateral Administrator (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral CustodianAdministrator, in connection with each delivery of applicable Required Asset Loan Documents hereunder to the Collateral CustodianAdministrator, the Servicer shall provide to the Collateral Custodian Administrator an electronic file copy (in EXCEL or a comparable formatformat acceptable to the Collateral Administrator) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset applicable Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. Notwithstanding anything herein to the contrary, the Collateral Administrator’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 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 Custodian Administrator shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is not satisfied, the Collateral Custodian Administrator shall within one three Business Day Days notify the Servicer of such determination and provide the Servicer (which may be via email) with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing (in the form of Exhibit L) by the Servicer and approved by the Administrative Agent within ten 10 Business Days of the Collateral CustodianAdministrator’s delivery notification to the Servicer of such reportits review of the Review Criteria, the Collateral Custodian Administrator shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. Other than the foregoing, the Collateral Custodian and Collateral Administrator shall not have any responsibility for reviewing any Required Asset Loan Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian and the Collateral Administrator, as applicable, shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that neither the Collateral 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 Required Asset Loan Documents or the instruments therein; and provided further provided, further, that, the Collateral Custodian’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 Asset Document original promissory notes actually delivered to the Collateral Custodian shall be kept in fire resistant vaultsat ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, rooms or cabinets at the locations specified on Schedule III attached hereto▇▇. ▇▇▇▇, Minnesota 55108, Attention: CLO Trust Services—OSCF LENDING V 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 45 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 Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All 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 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 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 clearly segregated 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 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 allow the Administrative Agent or the Collateral Agent 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent (provided that the Collateral Custodian shall provide notice of any such conflicting instructions to each of the Borrower and the Servicer).
(vii) 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 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 Custodian or the Collateral Administrator, as applicable, hereunder, neither the Collateral Custodian nor the Collateral Administrator shall 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 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.
(ix) Neither the Collateral Custodian nor the Collateral Administrator shall 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 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 matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Custodian or Collateral Administrator receives written notice thereof.
(x) [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 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 documents or instruments information normally maintained by the Collateral Custodian.
(iv) The , and subject to the Collateral Custodian shall make payments 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 terms delivery of such information to be included in the Monthly Servicing Report in accordance with Section 2.9 and Section 2.10 shall deliver a draft of such Payment Date Report not later than the day that is four (the “Payment Duties”).
(v4) On each Reporting Date, the Collateral Custodian shall provide a written report Business Days prior to the Administrative Agent applicable Payment Date to the Borrower and the Servicer (in and, following the delivery of a form acceptable Notice of Exclusive Control, the Collateral Agent and the Servicer) for the Servicer’s (or Collateral Agent’s, as applicable) review. The parties acknowledge and agree that the Servicer shall provide, and the Collateral Administrator shall have no duty or responsibility to determine, the underlying information (or perform the underlying calculations) provided to it. 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) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) 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.
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 8.5, the Collateral Custodian shall perform on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Upon the Collateral Custodian shall Agent's receipt of (A) a Default Notice from any Secured Creditor giving notice of a Major Default and (B) written notice from the Directing Creditors directing the Collateral Agent to take and retain custody of the Required Asset Documents delivered by the Seller pursuant to Section 3.2 in accordance with the terms and conditions of this Agreement, all specific collection or foreclosure action under any Security Instrument for the benefit of the Secured Parties Creditors (an "ENFORCEMENT DIRECTIVE"), the Collateral Agent shall undertake to proceed as directed as soon as possible and subject in no event later than two (2) Business Days after receipt of both such notices. All Enforcement actions undertaken by the Collateral Agent, whether or not directed by the Directing Creditors, shall be in accordance with applicable law. The Collateral Agent shall deliver a copy of any Default Notice and any Enforcement Directive to the Lien thereon in favor of the Administrative Agent as agent for the each Secured Parties. Within five Creditor not signatory thereto within two (2) Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral CustodianAgent. The Collateral Agent shall be entitled to rely and act upon advice of counsel (including, in connection with each delivery of Required Asset Documents hereunder without limitation, counsel to any Secured Creditor), independent accountants and other experts selected by the Collateral Custodian, Agent with reasonable care concerning all matters pertaining to any duties hereunder. The Company promptly after the Servicer execution hereof shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets Purchasers and the applicable Review Criteria that they fail to satisfy. The Servicer their contact information, and shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, promptly inform the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria changes to the Seller. Other than identities of or contact information for the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset DocumentsPurchasers.
(ii) In taking and retaining custody If an Enforcement Directive shall have been given by any Directing Creditors, such Enforcement Directive cannot be rescinded except by (a) written notice of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent Directing Creditors initially providing such Enforcement Directive or (b) order of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority a court of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated hereincompetent jurisdiction.
(iii) All Required Asset Document The Collateral Agent shall be kept have no obligation to, nor liability for failure to, independently verify the existence or occurrence of any events set forth in fire resistant vaultsany Default Notice it shall receive pursuant to SECTION 2(b)(i) hereof, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by and the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so Agent may rely thereon as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodianeach matter stated therein as more fully set forth in SECTION 2(e) hereof.
(iv) The Collateral Custodian Agent shall make payments not release, substitute, exercise any right or remedy, or take any other action with respect to any Collateral without the prior written consent of the Required Creditors, except in connection with an Enforcement Directive from the Directing Creditors. The Collateral Agent shall give notice to each Secured Creditor of any substantial or material action taken by the Collateral Agent pursuant to the terms of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”)this SECTION 2(b)(iii) promptly after taking such action.
(v) On each Reporting DateThe Collateral Agent undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by the Collateral Custodian shall provide a written report to the Administrative Agent Secured Creditors and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria Company that any non-complying Asset fails to satisfythere are no implied duties or obligations under this Agreement.
(vi) In performing its dutiesconnection with the pledge of the Real Property Collateral to the Collateral Agent, the Course Leases with respect to each Mortgage will be delivered to the Collateral Agent as soon after the date hereof as is reasonably practicable. Within two Business Days following receipt of the Course Leases the Collateral Agent shall review each such Course Lease to ascertain that such Course Lease relates to a property identified on SCHEDULE 1. In so doing, the Collateral Custodian Agent may rely on the purported due execution and genuineness of any signature thereon. If, within such two day period, the Collateral Agent finds any Course Lease not to have been executed or received or to be unrelated to the properties listed on SCHEDULE 1, the Collateral Agent shall, promptly upon the conclusion of its review, notify the Company and the Secured Parties. The Company shall use deliver promptly to the same degree Collateral Agent any Course Leases that were not delivered to the Collateral Agent in accordance with this section. Anything to the contrary herein notwithstanding, the Collateral Agent shall not be liable for any acts or omissions caused by or related to the failure of care the Company to deliver to the Collateral Agent any Collateral including, but not limited to, the Course Leases and attention related documents, in accordance with the terms hereof.
(vii) The Collateral Agent shall have no responsibility for reviewing any Course Lease except as expressly provided in this SECTION 2(b)(vii). In reviewing any Course Lease pursuant to this SECTION 2(b)(vii), the Collateral Agent shall have, without limitation, no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form (except, if applicable, to determine if the Collateral Agent is the assignee or endorsee thereof), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to do so or whether any signature thereon is genuine, but shall only be required to determine whether a document has been executed and that it employs with respect appears to similar be what it purports to be.
(viii) It is understood and agreed upon by all of the parties hereto that the Collateral Agent shall, other than as set forth in Sections 2(b)(vi) and (vii), have no duty other than to receive or possess a pledge of the Collateral and shall have no duty to examine or investigate such Collateral for any defects under the terms of this Agreement.
(ix) Pursuant to the terms of this Agreement and the Security Instruments, upon request of the Required Creditors prior to a Major Default or upon request of any two Directing Creditors following a Major Default, and the delivery to the Collateral Agent of two copies of a Request for Release in the form of either EXHIBIT A or EXHIBIT B hereto from either the Required Creditors or any two Directing Creditors, as applicable, the Collateral Agent shall release or cause to be released such Collateral that it holds as is the subject of the Request for Release to the designee of the Company, prior to a Major Default, or the designee of the Collateral CustodianAgent, following a Major Default.
Appears in 1 contract
Sources: Collateral Agency and Intercreditor Agreement (National Golf Properties Inc)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by the Seller pursuant to Section 3.2 in accordance with the terms and conditions of this Agreementit by, 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 Business Days of its receipt of any Required Asset Documentsor on behalf of, the Borrower for each Collateral Custodian shall review Obligation listed on the related Collateral and Required Asset Documents Obligations Schedule.
(ii) With respect to confirm that (A) such each Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached hereto, in Annex A or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Servicer, or a written report to Responsible Officer, in the Administrative Agent case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Facility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral 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 Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (SCP Private Credit Income BDC LLC)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Seller pursuant to Section 3.2 in accordance with the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, each Loan Party and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached heretoin Annex A, at the office located at c/o DB Services Americas, Inc., 5▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File delivered to it shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of a written report to Responsible Officer, in the Administrative Agent case of the Borrower or the Servicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) any Loan Party, the Facility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Servicer Default or Unmatured Servicer 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.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the Collateral The Document Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of Document Custodian, as the Required Asset Documents delivered by the Seller pursuant to Section 3.2 in accordance with the terms and conditions of this Agreement, all for the benefit duly appointed agent of the Secured Parties and subject to Parties, for these purposes, acknowledges that the Lien thereon in favor of the Administrative Agent as agent for the Secured Parties. Within Servicer shall deliver no later than five (5) Business Days of its receipt of any Required Asset Documentsafter such Funding Date, except as set forth in Section 10.20, the Collateral Custodian shall review the related Obligation Files delivered to it for each Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth Obligation listed on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect Schedule of Collateral Obligations attached to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectivelyApproval Request or the related Reinvestment Request, the “Review Criteria”)as applicable. In order to facilitate the foregoing review by the Collateral Custodian, The Document Custodian acknowledges that in connection with each delivery of Required any Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL Approval Request or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name Reinvestment Request, additional Collateral Obligation Files (specified on an accompanying Schedule of the Obligor with respect Collateral Obligations supplement) may be delivered to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect from time to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documentstime.
(ii) With respect to each Collateral Obligation File which has been or will be delivered to the Document Custodian, the Document Custodian is acting exclusively as the custodian of the Secured Parties, and has no instructions to hold any Collateral Obligation File for the benefit of any Person other than the Secured Parties and undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Document Custodian shall be deemed to be acting as for the agent purpose of perfecting the Collateral Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the possession of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Document Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset The Document Custodian shall maintain continuous custody of all Collateral Obligation Files delivered to it in its possession and shall reflect in its records the interest of the Secured Parties therein. Each Collateral Obligation File held by the Document Custodian shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together 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 Agent. All Required Asset Documents The Document Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Document Custodian shall (i) act exclusively as Document Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Agent, the Agent’s written instructions shall control.
(v) On each Reporting DateThe Document Custodian shall accept only written instructions of an Executive Officer, in the case of the Borrower or the Servicer, or a Responsible Officer, in the case of the Agent, concerning the use, handling and disposition of the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyObligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Agent, the Servicer, the Document Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Document Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Agent or the Collateral Administrator, as applicable, shall dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the Agent in writing, which shall give a direction consistent with such determination. Expenses of the Document Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Agent may direct the Document Custodian in writing to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Document Custodian hereunder, such party 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 Agent; provided that the Document Custodian shall use not be required to take any action hereunder at the same degree request of care and attention as the Agent, any Secured Parties 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 employs has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Document Custodian requests the consent of the Agent and the Document Custodian does not receive a consent (either positive or negative) from the Agent within ten (10) Business Days of its receipt of such request, then the Agent shall be deemed to similar Collateral have declined to consent to the relevant action.
(viii) The Document 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 such party, or the Agent. The Document Custodian shall not be deemed to have knowledge or notice of the occurrence of an Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default Event of Default unless the Document Custodian has received written notice from the Agent, Servicer or the Borrower referring to this Agreement, describing such event and stating that such notice is a “Notice of Event of Default,” “Notice of Unmatured Event of Default,” “Notice of Unmatured Servicer Event of Default,” or “Notice of Servicer Event of Default,” as applicable. In the absence of receipt of such notice, the Document Custodian may conclusively assume that there is no Event of Default, Unmatured Event of Default, Unmatured Servicer Event of Default or Servicer Event of Default, in each case unless it holds as Collateral Custodianhas actual knowledge of any such occurrence.
Appears in 1 contract
Sources: Loan and Servicing Agreement (AGL Private Credit Income Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody Custodian, as the duly appointed agent of the Required Secured Parties, for these purposes, acknowledges that the Borrower shall cause the Servicer to deliver, on or prior to the applicable Funding Date (but no more than five (5) Business Days after such Funding Date, except as set forth in Section 10.2110.23), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Documents Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered by to the Seller pursuant Collateral Custodian from time to Section 3.2 time, and that the Collateral Agent will credit each Collateral Obligation File to the Collection Account in accordance with the terms and conditions of this Agreement, all for hereof. Promptly upon 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 Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Facility Agent and each Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains is acting exclusively as the related Asset List or that otherwise contains the Asset identification number and the name custodian of the Obligor with respect Secured Parties, and has no instructions to each related Asset. If, at hold any Collateral Obligation File for the conclusion benefit of any Person other than the Secured Parties and undertakes to perform such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except upon compliance with the USActive 31637433.4 -146- provisions of Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations specified on Schedule III attached hereto, or at such other office as of the Collateral Custodian. Each Collateral Obligation File shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The Collateral Custodian shall make payments pursuant With respect to the terms of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On documents comprising each Reporting DateCollateral Obligation File, the Collateral Custodian shall provide (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Facility Agent; provided, that in the event of a written report to conflict between the Administrative Agent terms of this Agreement and the Servicer (in a form acceptable to written instructions of the Administrative Facility Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyFacility Agent’s written instructions shall control.
(vi) 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.
Appears in 1 contract
Sources: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Collateral Asset Documents Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 Borrower for each Collateral Asset listed on the Collateral Asset Schedule. The Collateral Custodian acknowledges that in accordance connection with any Borrowing or Reinvestment Request and the terms and conditions of this Agreementrelated Approval Notice (if applicable), all for additional Collateral Asset Files (specified on the benefit of the Secured Parties and subject applicable Collateral Asset Schedule or supplement to the Lien thereon in favor of Collateral Asset Schedule) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required such delivery of Collateral Asset DocumentsFiles and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower and the Administrative Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Collateral Asset DocumentsFiles, the Collateral Custodian shall be deemed to be acting as for the agent purpose of perfecting the Administrative Agent and Agent’s security interest therein under the Secured Parties; UCC. Except as provided that herein, no Collateral Asset File or other document constituting a part of a Collateral Asset File shall be released from the Collateral Custodian makes no representations as to the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required The Collateral Custodian shall maintain continuous custody of all Collateral Asset Document Files 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 Collateral Asset File which comes into the possession of the Collateral Custodian (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations specified on Schedule III attached hereto, or at such other office as of the Collateral Custodian. Each Collateral Asset File shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Administrative Agent. All Required The Collateral Custodian shall keep the Collateral Asset Documents shall be Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Asset File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Asset File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Administrative Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Administrative Agent, the terms of this Agreement shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of a written report to Responsible Officer of the Servicer or the Administrative Agent concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Collateral Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyFiles.
(vi) In performing its dutiesthe event that (i) the Borrower, the Administrative Agent, the Servicer or the Collateral Custodian shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Asset File or a document included within a Collateral Asset File or (ii) a third party shall institute any court proceeding by which any Collateral Asset File or a document included within a Collateral Asset File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by Law, continue to hold and maintain all the Collateral Asset Files 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 Collateral Custodian shall use dispose of such Collateral Asset File or a document included within such Collateral Asset File as directed by the same degree Administrative Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral 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 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 or otherwise (unless it employs 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 and the Collateral 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 similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Credit Agreement (Nuveen Churchill Private Capital Income Fund)
Duties. On From the Closing Date until its resignation pursuant to clause (n) below or before the initial Funding Date, and until its removal pursuant to Section 8.5clause (i) below, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i1) The Collateral Custodian shall take at all times hold all Custody Documents Delivered (as defined in the Pledge and retain Security Agreement) in physical form at one of its of fices in the United States (for purposes hereof, the “Custodial Office”); provided that, for the avoidance of doubt, the only Custody Documents required to be held in physical custody by the Collateral Custodian under this Agreement are the Escrowed Assignment Agreement Documents. The Collateral Custodian may change the Custodial Of f ice at any time and f rom time to time upon notice to the Borrower, the Collateral Manager, the Collateral Agent and the Administrative Agent, provided that the replacement Custodial Of f ice shall be an of f ice of the Required Asset Collateral Custodian located in the United States. All Custody Documents delivered held by the Seller pursuant to 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 Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved be available for inspection by the Administrative Agent within ten Business Days upon prior written request and during normal business hours of the Collateral Custodian’s delivery . Any such inspection shall occur no earlier than f ive Business Days after such inspection is requested and the costs of such reportinspection shall be borne by the requesting party. The Administrative Agent (including its representatives and designees) may not request more than two inspections per year or, the Collateral Custodian shall return any Asset which fails to satisfy if an Event of Default has occurred and is continuing no more than once a Review Criteria month. Notwithstanding anything to the Seller. Other than the foregoingcontrary herein, the Collateral Custodian shall not have be required to hold or accept custody of any responsibility Custody Document hereunder to the extent such Custody Document is of a type not approved for reviewing any Required Asset Documents.deposit into the custodial vault of the Collateral Custodian; provided that
(ii1) the Collateral Custodian notifies the Collateral Manager and the Lenders prior to refusing to hold such documents and (2) the failure of the Collateral Custodian to accept and hold such documents shall not result in a default or an Event of Default with
(2) In taking and retaining custody of the Required Asset any such Custody Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that (x) the Collateral Custodian makes no representations as to the existence, perfection perfection, enforceability or priority of any Lien on the Required Asset such Custody Documents or the instruments thereintherein or as to the adequacy or sufficiency of such Custody Documents; and provided further that, (y) the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii3) All Required Asset Document Custody Documents required to be held by the Collateral Custodian shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents Custodial Office and shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset The Collateral Custodian shall segregate such Custody Documents on its inventory system and will not commingle any such physical Custody Documents with any other files of the Collateral Custodian other than those, if any, relating to the Borrower and its Af f iliates and Subsidiaries.
(4) 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 clearly segregated from any read into this Agreement, the other documents Transaction Documents or instruments maintained by 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 Custodian shall not be deemed to assume any obligations or liabilities of the Borrower or Collateral Manager hereunder or under any other Transaction Document.
(iv5) The Collateral Custodian shall make payments pursuant have no obligation to review or verify whether the Borrower or the Collateral Manager on its behalf has obtained and delivered (or made available to the terms Transaction Data Room) the necessary Diligence Information and other Custody Documents required for purchases of the Monthly Report in accordance with Section 2.9 Collateral Obligations hereunder, and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report have no obligation to maintain the Administrative Agent and Transaction Data Room on behalf of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyBorrower.
(vi) 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.
Appears in 1 contract
Sources: Credit Agreement (New Mountain Private Credit Fund)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.5, the Collateral Document Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Document Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to 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 Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Document Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Document Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Document Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoin Section 5.7(c) hereof, or at such other office as shall be specified to the Administrative Agent Lead Lender and the Collateral Manager by the Collateral Document Custodian in a written notice delivered at least 45 30 days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Document Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianDocument Custodian other than those, if any, relating to USB and its Affiliates and its Subsidiaries; provided, however, the Document Custodian shall segregate any commingled files upon written request of the Lead Lender and the Borrower.
(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 Document Custodian shall provide a written report to the Administrative Agent Lead Lender and the Servicer Collateral Manager (in a form acceptable mutually agreeable to the Administrative AgentLead Lender and the Document Custodian) identifying each Asset Loan for which it holds Required Asset Loan Documents.
(v) Notwithstanding any provision to the contrary elsewhere in the Transaction Documents, the non-complying Assets Document 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 applicable Review Criteria other Transaction 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 non-complying Asset fails to satisfydiscretion hereunder and shall have no investment or management responsibility.
(vii) In performing its dutiesThe Document Custodian agrees to cooperate with the Lead Lender, the Collateral Custodian shall use Manager, the same degree Loan Agent and the Collateral Agent and deliver any Required Loan Documents to the Collateral Agent, the Loan Agent, the Collateral Manager or Lead Lender (pursuant to a written request in the form of care and attention Exhibit D), as it employs applicable, as requested in order to allow the Collateral Manager, the Collateral Agent, the Loan Agent or the Lead Lender to take any action that the Lead Lender deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable the Collateral Manager, the Collateral Agent, the Loan Agent or the Lead Lender to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article X. In the event the Document Custodian receives instructions from the Collateral Agent, the Loan Agent, the Collateral Manager or the Borrower which conflict with any instructions received by the Lead Lender, the Document Custodian shall rely on and follow the instructions given by the Lead Lender.
(ii) The Lead Lender may direct the Document Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Document Custodian hereunder, the 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 Lead Lender; provided that the Document Custodian shall not be required to take any action hereunder at the request of the Lead Lender, any Secured Party 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 holds as Collateral has received indemnity which it reasonably deems to be satisfactory with respect thereto). In the event the Document Custodian requests the consent of the Lead Lender and the Document Custodian does not receive a consent (either positive or negative) from the Lead Lender within 10 Business Days of its receipt of such request, then the Lead Lender shall be deemed to have declined to consent to the relevant action.
(iii) The Document 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 Document Custodian, or the Lead Lender. The Document Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including a Termination Event, unless a Responsible Officer of the Document Custodian has actual knowledge of such matter or written notice thereof is received by the Document Custodian.
(iv) If, in performing its duties under this Agreement, the Document Custodian is required to decide between alternative courses of action, the Document Custodian may request written instructions (or, in its sole discretion, oral instructions followed by written confirmation thereof) from the Lead Lender as to the course of action desired by it. If the Document Custodian does not receive such instructions within two (2) Business Days after it has requested them, the Document Custodian may, but shall be under no duty to, take or refrain from taking any such courses of action. The Document 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 Document Custodian shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder and shall be fully protected in acting in accordance with such advice.
Appears in 1 contract
Sources: Facility Agreement (AB Private Credit Investors Corp)
Duties. On or before From the initial Funding Date, and Closing Date until its removal and/or replacement pursuant to Section 8.511.05 or Section 11.07, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 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, the related Loan Asset DocumentsSchedule 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 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 related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any if listed on the Loan Asset Checklist, filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists (or evidence thereof) with respect to any real or personal property constituting the Related PropertyCollateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List Schedule, and whether there is not a duplicate 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 Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded USActive 55323723.3 by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 Asset 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 Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic 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 Servicer and the Administrative Agent of such determination and provide the Servicer and the Administrative Agent with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. 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 Custodian’s 's delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 DocumentsChecklist delivered to it in electronic form.
(ii) In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further that, that the Collateral Custodian’s 's duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress of the Collateral Custodian located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not USActive 55323723.3 commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) The Collateral Custodian shall make payments pursuant to On the terms Reporting Date of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative Agent, the Servicer and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral Custodian shall not 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, (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 or otherwise (unless it holds as has USActive 55323723.3 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Duties. On or before From the initial Funding Date, and Closing Date until its removal pursuant to Section 8.511.05, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered by the Seller Borrower pursuant to Section 3.2 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 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, the related Loan Asset DocumentsSchedule 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 Custodian shall have additional time as it determines is reasonably necessary to conduct such review), the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents to confirm that (A) such Collateral has Required Loan Documents have been properly executed (either an original or a copy, as indicated on the Loan Asset Checklist) and has have no missing or mutilated pages, (B) any filed stamped copies of the UCC and other filings (as set forth on required by the Asset ChecklistsRequired Loan Documents) have been madeare included, (C) if listed on the Loan Asset Checklist, a copy of an Insurance Policy exists (or evidence thereof) with respect to any real or personal property constituting the Related PropertyCollateral is included, and (D) confirming the related Outstanding Asset Balanceoriginal balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset List and is not a duplicate Asset Schedule (such items (A) through (D) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic file (in EXCEL or a comparable formatcopy, as applicable) that of the related Loan Asset Checklist which contains the related Loan Asset List or that otherwise contains information with respect to the Asset Required Loan Documents being delivered, identification number and the name of the Obligor with respect to each related such Loan Asset. 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 on their face based on the information provided on the Loan Asset 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 Custodian shall determine that (iI) the Outstanding Asset Balances original balance of the Collateral Loan Asset with respect to which it has received Required Asset Loan Documents with respect to is less than as set forth on the electronic fileLoan Asset Schedule, the Collateral Custodian shall immediately notify the Administrative Agent and the Servicer of such discrepancydiscrepancy within one (1) Business Day, and or (iiII) any Review Criteria is not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five (5) Business Days after notice or knowledge thereof to correct any non-compliance with a any Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. 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 Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the SellerBorrower. 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 DocumentsChecklist 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 Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Loan Documents or the instruments therein; and provided further thatprovided, further, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document Loan Documents in physical form shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress 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 45 thirty (30) days prior to such change. All Required Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral CustodianCustodian other than those, if any, relating to the Transferor and its Affiliates and subsidiaries.
(iv) The Collateral Custodian shall make payments pursuant to On the terms Reporting Date of the Monthly Report in accordance with Section 2.9 and Section 2.10 (the “Payment Duties”).
(v) On each Reporting Datemonth, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable mutually agreeable to the Administrative AgentAgent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Asset Documents, the non-complying Assets Loan Documents and the applicable Review Criteria that any non-complying Loan Asset fails to satisfy.
(viv) In performing its dutiesNotwithstanding any provision to the contrary elsewhere in the Transaction Documents, the Collateral Custodian shall use 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 same degree other Transaction Documents or otherwise exist against the Collateral Custodian. Without limiting the generality of care the foregoing, it is hereby expressly agreed and attention 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 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 it employs 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 hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to similar Article VII. In the event the Collateral Custodian receives instructions from the Collateral Agent, the Servicer or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Custodian shall rely on and follow the instructions given by the Administrative Agent.
(ii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral 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 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 or otherwise (unless it holds as 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan and Servicing Agreement (First Eagle Private Credit Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.57.5, the Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
i. In taking and retaining custody of the Underlying Instruments with respect to the Permitted Investments, 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 Underlying Instruments or the instruments therein; and provided further that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
ii. 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 (ior 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 Collateral Custodian. All such Required Loan Documents 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.
iii. The Collateral Custodian shall make payments in accordance with Section 2.7 and Section 2.8 (the “Payment Duties”).
iv. The Collateral Custodian shall provide a written daily report to the Administrative Agent and the Collateral Manager of (x) all deposits to and withdrawals from the Accounts for each Business Day and the outstanding balances as of the end of each Business Day, and (y) a report of settled trades for each Business Day. For the avoidance of doubt the Collateral Custodian will not permit any withdrawal from any Collection Account except in accordance with Section 2.9(f).
v. On or before the Effective Date, the Collateral Custodian shall accept from the Collateral Manager delivery of the information required to be set forth in the Borrowing Base Certificate in hard copy and on computer tape; provided that the computer tape is in an MS DOS, PC readable ASCII format or other format to be agreed upon by the Collateral Custodian and the Collateral Manager on or prior to closing.
vi. Not later than 12:00 noon (New York City Time) on each Reporting Date, the Collateral Manager shall deliver to the Collateral Custodian the loan tape, which shall include but not be limited to the following information: (x) for each Loan, the name and number of the related Obligor, the collection status, the loan status, a detailed aging of such Loan, an indication of whether or not such Loan is an Eligible Loan, the date of each Scheduled Payment and the Outstanding Balance, (y) the Borrowing Base and (z) the Adjusted Borrowing Value of each Loan and such other information, including any information related to an Approved Foreign Currency, as may be reasonably required for the Collateral Custodian to perform its duties hereunder (such loan tape, the “Tape”). The Collateral Custodian shall accept delivery of the Tape.
vii. Prior to the related Payment Date, the Collateral Custodian shall review the Payment Date Report to ensure that it is complete on its face and, based solely on the information provided in the Tape, that the following items in such Payment Date Report have been accurately calculated, if applicable, and reported: (A) the Borrowing Base, (B) the Collateral Custodian Fee, (C) the Adjusted Borrowing Value of each Loan and (D) Availability. The Collateral Custodian by a separate written report shall notify the Administrative Agent and the Collateral Manager of any disagreements with the Payment Date Report based on such review not later than the Business Day preceding such Payment Date to such Persons.
viii. In performing its duties, all calculations made by the Collateral Custodian pursuant to this Section 7.2(b) using Advance Rate, EBITDA and Unrestricted Cash of any Obligor (or, with respect to Advance Rate, Loan) shall be made using such amounts and an Approved Foreign Currency as provided by the Borrower or the Collateral Manager to the Collateral Custodian on the Tape.
ix. The Collateral Custodian shall take and retain custody of the Required Asset Loan Documents delivered (physically or electronically) by the Seller Borrower pursuant to Section 3.2 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 Agent, as agent for the Secured Parties. Within five (5) Business Days of its receipt of any Required Asset DocumentsLoan Documents and the Loan Checklist (the “Review Period”), the Collateral Custodian shall review the related Collateral and Required Asset Loan Documents delivered to it to confirm that (A) if the files delivered per the following sentence indicate that any document must contain an original signature, each such Collateral has been properly executed 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 has no missing or mutilated pages, (B) any UCC and other filings (as set forth based on a review of the Asset Checklists) have been madeapplicable note, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balanceinitial Loan balance when entered into or obtained by the Borrower, Asset Loan identification number and Obligor name with respect to such Asset Loan is referenced on the related Asset List Loan Checklist and is not a duplicate Asset Loan (such items (A) through (B) collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Loan Documents hereunder to the Collateral Custodian, the Servicer Collateral Manager shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable formatformat acceptable to the Collateral Custodian) listing Loan identification number, name of Obligor, and initial Loan balance and the related Loan Checklist per file that contains a list of all Required Loan Documents and whether they require original signatures, the related Asset List or that otherwise contains the Asset 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 AssetLoan. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancy, and (ii) any Review Criteria is are not satisfied, the Collateral Custodian shall within one (1) Business Day notify the Servicer Borrower, the Administrative Agent and the Collateral Manager of such determination and provide the Servicer Collateral Manager and the Borrower with a list of the non-complying Assets Loans and the applicable Review Criteria that they fail to satisfy. The Servicer Collateral Manager shall have five ten (10) Business Days to correct any non-compliance with a any Review CriteriaCriteria as stated in the preceding sentence. If after After the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review CriteriaPeriod, the Collateral Custodian shall promptly notify execute and deliver to the Seller Collateral Manager and the Administrative Agent of such determination by providing a written report to such persons identifyingcertification substantially in the form attached hereto as Exhibit J, with particularity, each Asset and each of the applicable Review Criteria that such Asset fails to satisfyincluding an attached exception report. In addition, if requested in writing in the form of Exhibit E by the Servicer Collateral 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 Asset Loan which fails to satisfy a Review Criteria to the SellerBorrower. 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 Custodian’s obligation to review the Required Asset DocumentsLoan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Checklist.
(ii) x. In taking and retaining custody of the Required Asset Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Administrative Agent and the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Asset Documents Underlying Instruments or the instruments therein; and provided further that, that the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) xi. All Required Asset Document Loan Documents (to the extent physically received by the Collateral Custodian) that are (i) originals or physical copies shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached heretoaddress of the Collateral Custodian located at the Custody Facilities, or at such other office as shall be specified to the Administrative Agent Agent, the Borrower, and the Collateral Manager by the Collateral Custodian in a written notice delivered at least 45 thirty (30) days prior to such changechange 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 Asset Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All The Collateral Custodian shall segregate the physical Required Asset Loan Documents shall be clearly segregated from on its inventory system and will not commingle the physical Required Loan Documents with any other documents or instruments maintained by files of the Collateral Custodian.
(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) xii. On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent Agent, the Borrower, and the Servicer Collateral Manager (in a form acceptable to the Administrative Agent) identifying each Asset Loan for which it holds Required Asset Loan Documents, the non-complying Assets Loans and the applicable Review Criteria that any non-complying Asset Loan fails to satisfy.
xiii. 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 Custodian shall not be deemed to assume any obligations or liabilities of the Borrower or Collateral Manager hereunder or under any other Transaction Document.
xiv. The Administrative Agent may direct the Collateral Custodian to take any action incidental to its duties hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (viand shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that, the Collateral 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 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 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 and the Collateral 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.
xv. 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 provides such Secured Party the right to so direct the Collateral Custodian.
xvi. In performing its duties, the Collateral Custodian shall use the same a commercially reasonable degree of care and attention as it employs required or expected with respect to the provision of similar Collateral that it holds as Collateral Custodianservices and similar loans.
Appears in 1 contract
Sources: Loan, Security and Collateral Management Agreement (AG Twin Brook Capital Income Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by to it by, or on behalf of, each Loan Party for each Collateral Obligation listed on the Seller pursuant to Section 3.2 in accordance with the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, each Loan Party and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached heretoin Annex A, at the office located at c/o DB Services Americas, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File delivered to it shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of a written report to Responsible Officer, in the Administrative Agent case of the Borrower or the Servicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) any Loan Party, the Facility Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, an Unmatured Event of Default, Servicer Default or Unmatured Servicer 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.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 in accordance with Borrower for each Collateral Obligation listed on the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower, each Agent and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Custodian (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached heretoin Annex A or at the office located at Deutsche Bank National Trust Company, c/o DB Services Americas, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File delivered to it shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent or, in accordance with Section 2.9 18.5, the Servicer; provided that in the event of a conflict between the written instructions of the Facility Agent and Section 2.10 (the “Payment Duties”)written instructions of the Servicer, the Facility Agent’s written instructions shall control; provided, further, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of a written report to Responsible Officer, in the Administrative Agent case of the Borrower or the Servicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Facility Agent, the Servicer, the Collateral Custodian, any Agent or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral 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 Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Collateral Asset Documents Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 Borrower for each Collateral Asset listed on the Collateral Asset Schedule. The Collateral Custodian acknowledges that in accordance connection with any Borrowing or Reinvestment Request and the terms and conditions of this Agreementrelated Approval Notice (if applicable), all for additional Collateral Asset Files (specified on the benefit of the Secured Parties and subject applicable Collateral Asset Schedule or supplement to the Lien thereon in favor of Collateral Asset Schedule) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required such delivery of Collateral Asset DocumentsFiles and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower and the Administrative Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Collateral Asset DocumentsFiles, the Collateral Custodian shall be deemed to be acting as for the agent purpose of perfecting the Administrative Agent and Agent’s security interest therein under the Secured Parties; UCC. Except as provided that herein, no Collateral Asset File or other document constituting a part of a Collateral Asset File shall be released from the Collateral Custodian makes no representations as to the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required The Collateral Custodian shall maintain continuous custody of all Collateral Asset Document Files 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 Collateral Asset File which comes into the possession of the Collateral Custodian (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by of the Collateral Custodian in a written notice delivered located at least 45 days prior to such change▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. All Required ▇▇▇▇, MN 55108, Attention: Transfers/Redemptions – OLPG Lending SPV, LLC. Each Collateral Asset Documents File shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Administrative Agent. All Required The Collateral Custodian shall keep the Collateral Asset Documents shall be Files clearly segregated from any other documents or instruments maintained in its files.
(iv) With respect to the documents comprising each Collateral Asset File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Asset File received by it for the exclusive use and benefit of the Secured Parties and (iii) make disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Administrative Agent; provided, that in the event of a conflict between the terms of this Agreement and the written instructions of the Administrative Agent, the terms of this Agreement shall control.
(v) The Collateral Custodian shall accept only written instructions of a Responsible Officer of the Servicer or the Administrative Agent concerning the use, handling and disposition of the Collateral Asset Files.
(vi) In the event that (i) the Borrower, the Administrative Agent, the Servicer or the Collateral Custodian shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Asset File or a document included within a Collateral Asset File or (ii) a third party shall institute any court proceeding by which any Collateral Asset File or a document included within a Collateral Asset File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by Law, continue to hold and maintain all the Collateral Asset Files 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 Collateral Custodian shall dispose of such Collateral Asset File or a document included within such Collateral Asset File as directed by the Administrative Agent, which shall give a direction consistent with such determination. Expenses of the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral 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 Collateral 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 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 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 and the Collateral 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.
(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 provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian.
(ivix) The Collateral Custodian shall make payments pursuant to the terms of prepare the Monthly Report in accordance with Section 2.9 12.04 and Section 2.10 (shall distribute funds in accordance with the “Payment Duties”).
(v) On each Reporting Date, the Collateral Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs Monthly Report delivered with respect to similar Collateral that it holds as Collateral Custodianeach month in which a Payment Date occurs in accordance with Section 2.13.
Appears in 1 contract
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Collateral Asset Documents Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 Borrower for each Collateral Asset. The Collateral Custodian acknowledges that in accordance connection with the terms and conditions of this Agreementany Reinvestment, all for the benefit of the Secured Parties and subject additional Collateral Asset Files may be delivered to the Lien thereon in favor of Collateral Custodian from time to time. Promptly upon the Administrative Agent as agent for the Secured Parties. Within five Business Days of its receipt of any Required such delivery of Collateral Asset DocumentsFiles and without any review, the Collateral Custodian shall review send notice of such receipt to the related Collateral Manager, the Borrower and Required the Administrative Agent.
(ii) With respect to each Collateral Asset Documents to confirm that (A) such Collateral File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Collateral Asset DocumentsFiles, the Collateral Custodian shall be deemed to be acting as for the agent purpose of perfecting the Administrative Agent and Agent’s security interest therein under the Secured Parties; UCC. Except as provided that herein, no Collateral Asset File or other document constituting a part of a Collateral Asset File shall be released from the Collateral Custodian makes no representations as to the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required The Collateral Custodian shall maintain continuous custody of all Collateral Asset Document Files 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 Collateral Asset File which comes into the possession of the Collateral Custodian (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations specified on Schedule III attached hereto, or at such other office as of the Collateral Custodian. Each Collateral Asset File shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Administrative Agent. All Required The Collateral Custodian shall keep the Collateral Asset Documents shall be Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Asset File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Asset File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Administrative Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Administrative Agent, the terms of this Agreement shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of a written report to Responsible Officer of the Collateral Manager or the Administrative Agent concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Collateral Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyFiles.
(vi) In performing its dutiesthe event that (i) the Borrower, the Administrative Agent, the Collateral Manager or the Collateral Custodian shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Asset File or a document included within a Collateral Asset File or (ii) a third party shall institute any court proceeding by which any Collateral Asset File or a document included within a Collateral Asset File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by Law, continue to hold and maintain all the Collateral Asset Files 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 Collateral Custodian shall use dispose of such Collateral Asset File or a document included within such Collateral Asset File as directed by the same degree Administrative Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Administrative Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Administrative Agent; provided that the Collateral 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 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 or otherwise (unless it employs 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 and the Collateral 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 similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Administrative Agent. The Collateral 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 Custodian has actual knowledge of such matter 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 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian Custodian, as the duly appointed agent of the Secured Parties, shall take and retain custody of the Required Asset Documents Collateral Obligation Files delivered by to it by, or on behalf of, the Seller pursuant to Section 3.2 in accordance with Borrower for each Collateral Obligation listed on the terms and conditions Schedule of this Agreement, all for the benefit of the Secured Parties and subject Collateral Obligations attached to the Lien thereon related Asset Approval Request. The Collateral Custodian acknowledges that in favor connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered to the Administrative Agent as agent for Collateral Custodian from time to time. Promptly upon the Secured Parties. Within five Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Borrower, each Agent and the Facility Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) act exclusively as the Outstanding Asset Balances custodian of the Secured Parties, and has no instructions to hold any Collateral it has received Required Asset Documents with respect Obligation File for the benefit of any Person other than the Secured Parties and undertakes to is less than perform such duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except as permitted by Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral Custodian shall maintain continuous custody of all Collateral Obligation Files 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 Collateral Obligation File which comes into the possession of the Collateral Custodian (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations office of the Collateral Custodian specified on Schedule III attached heretoin Annex A or at the office located at Deutsche Bank NationalComputershare Trust Company, c/o DB Services Americas, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.A., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇, Minnesota 55018, or at such other office offices as shall be specified to the Administrative Facility Agent by and the Collateral Custodian Servicer in a written notice delivered at least 45 thirty (30) days prior to such change. All Required Asset Documents Each Collateral Obligation File delivered to it shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent or, in accordance with Section 2.9 18.5, the Servicer; provided that in the event of a conflict between the written instructions of the Facility Agent and Section 2.10 (the “Payment Duties”)written instructions of the Servicer, the Facility Agent’s written instructions shall control; provided, further, that in the event of a conflict between the terms of this Agreement and the written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of a written report to Responsible Officer, in the Administrative Agent case of the Borrower or the Servicer, or a Responsible Officer, in the case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Facility Agent, the Servicer, the Collateral Custodian, any Agent or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered other than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File in its possession or a document included within such Collateral Obligation File as directed in writing by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral 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 Custodian has actual knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Oaktree Strategic Credit Fund)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody Custodian, as the duly appointed agent of the Required Secured Parties, for these purposes, acknowledges that the Borrower shall cause the Investment Manager to deliver, on or prior to the applicable Funding Date (but no more than five (5) Business Days after such Funding Date, except as set forth in Section 10.22), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Documents Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered by to the Seller pursuant Collateral Custodian from time to Section 3.2 time, and that the Collateral Custodian will credit each Collateral Obligation File to the Collection Account in accordance with the terms and conditions of this Agreement, all for hereof. Promptly upon 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 Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Investment Manager and, the Administrative Agent and each Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains is acting exclusively as the related Asset List or that otherwise contains the Asset identification number and the name custodian of the Obligor with respect Secured Parties, and has no instructions to each related Asset. If, at hold any Collateral Obligation File for the conclusion benefit of any Person other than the Secured Parties and undertakes to perform such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations specified on Schedule III attached hereto, or at such other office as of the Collateral Custodian. Each Collateral Obligation File shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Administrative Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Administrative Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Administrative Agent, the Administrative Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Investment Manager, or a written report to Responsible Officer, in the Administrative Agent and the Servicer (in a form acceptable to case of the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, concerning the non-complying Assets use, handling and disposition of the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Administrative Agent, any Agent, the Investment Manager, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Administrative Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower. Custodian and, the Administrative Agent and attention as it employs each Agent (such information contained on the Schedule of Collateral Obligations shall also be delivered to the Collateral Custodian and, the Administrative Agent and each Agent simultaneously in Microsoft Excel format) with respect to similar the Collateral that it holds as Obligations to be delivered to the Collateral CustodianAgent on such Funding Date.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Duties. On or before (a) The Executive shall act as the initial Funding DateChief Executive Officer of the Company and shall report to the Company’s Board of Directors (the “Board”). The Executive will be responsible for managing and directing the Company’s operations and for such duties as may be assigned to him from time to time by the Board, and until its removal pursuant to Section 8.5the Executive shall perform and discharge such duties diligently and faithfully, provided that such duties are consistent with the Executive’s position at the Company. Except when on vacation or for special circumstances, the Collateral Custodian Executive shall perform use his best efforts to, on a full-time basis, be (i) physically present (a) at the Company’s headquarters or (b) at another of the Company’s offices, or (ii) traveling on behalf of the Administrative Agent and Company. The Executive acknowledges that his position will require extensive travel.
(b) If the Secured PartiesBoard in writing directs the Executive to move his primary residence to the vicinity of the Company’s Jacksonville headquarters within nine months of October 9, 2006, the following duties Executive shall move his primary residence to the vicinity of the Company’s Jacksonville headquarters within one year after October 9, 2006; provided the Company and obligations:
Executive have in good faith negotiated a mutually acceptable relocation package for Executive. If the Board in writing directs the Executive to move his primary residence to the vicinity of the Company’s Jacksonville headquarters later than nine months after October 9, 2006, but not later than two years after October 9, 2006, the Executive shall move his primary residence to the vicinity of the Company’s Jacksonville headquarters within three months of the Board’s request; provided the Company and Executive have in good faith negotiated a mutually acceptable relocation package for Executive. Notwithstanding the foregoing, if the Executive moves his primary residence at the direction of the Board, the Company shall pay directly or reimburse Executive for the reasonable costs and expenses of relocating, including without limitation, (i) The Collateral Custodian shall take travel, transportation, meals, temporary lodging and retain custody of the Required Asset Documents delivered by the Seller pursuant to 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 Business Days of its receipt of any Required Asset Documents, the Collateral Custodian shall review the similar related Collateral and Required Asset Documents to confirm that (A) such Collateral has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains the related Asset List or that otherwise contains the Asset identification number and the name of the Obligor with respect to each related Asset. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than as set forth on the electronic file, the Collateral Custodian shall immediately notify the Administrative Agent of such discrepancymoving expenses, and (ii) any Review Criteria closing costs, real estate commissions, attorney’s fees and other similar costs reasonably incurred by Executive in the relocation. All expenses subject to income tax shall be grossed up such that the state and federal tax effect to Executive is zero. The Company and the Executive agree to work in good faith to minimize the potential gross-up to the extent consistent with applicable laws and regulations. Executive shall not satisfiedbe required to relocate to the vicinity of the Company’s Jacksonville headquarters until his home in Chicago, Illinois is sold. If the Board in writing directs the Executive to move his primary residence in accordance with the foregoing provisions, the Collateral Custodian shall within one Business Day notify the Servicer of Executive covenants and agrees to use his best efforts to sell such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documentsprimary residence.
(iic) In taking The Executive shall devote his full business time, attention, skills and retaining custody energies to the performance of his duties hereunder and to the promotion of the Required Asset Documents, the Collateral Custodian shall be deemed to be acting as the agent business of the Administrative Agent Company. The Executive may not, during the Employment Period, be employed or engaged in any other business activity, whether or not such activity is pursued for gain, profit or other pecuniary advantage, which would not allow him to contribute his full business time, attention, skills and the Secured Parties; provided that the Collateral Custodian makes no representations as energies to the existence, perfection or priority performance of any Lien on his duties hereunder and to the Required Asset Documents or promotion of the instruments therein; business of the Company without the written consent of the Chairman of the Company. Nothing in this paragraph will be construed as preventing the Executive from investing his personal assets in businesses which do not compete with the Company and provided further that, engaging in not-for-profit and civic activities that do not interfere with the Collateral CustodianExecutive’s duties as agent shall be limited to those expressly contemplated hereinhereunder.
(iii) All Required Asset Document shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on Schedule III attached hereto, or at such other office as shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. All Required Asset Documents shall be clearly segregated from any other documents or instruments maintained by the Collateral Custodian.
(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 Custodian shall provide a written report to the Administrative Agent and the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfy.
(vi) 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.
Appears in 1 contract
Sources: Employment Agreement (A21, Inc.)
Duties. On or before the initial Funding Date, and until its removal pursuant to Section 8.5, the The Collateral Custodian shall perform perform, on behalf of the Administrative Agent and the Secured Parties, the following duties and obligations:
(i) The Collateral Custodian shall take and retain custody Custodian, as the duly appointed agent of the Required Secured Parties, for these purposes, acknowledges that the Borrower shall cause the Servicer to deliver, on or prior to the applicable Funding Date (but no more than five (5) Business Days after such Funding Date, except as set forth in Section 10.2310.21), the Collateral Obligation Files delivered to it for each Collateral Obligation listed on the Schedule of Collateral Obligations attached to the related Asset Documents Approval Request. The Collateral Custodian acknowledges that in connection with any Asset Approval Request, additional Collateral Obligation Files (specified on an accompanying Schedule of Collateral Obligations supplement) may be delivered by to the Seller pursuant Collateral Custodian from time to Section 3.2 time, and that the Collateral Agent will credit each Collateral Obligation File to the Collection Account in accordance with the terms and conditions of this Agreement, all for hereof. Promptly upon 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 Business Days of its receipt of any Required Asset Documentssuch delivery of Collateral Obligation Files and without any review, the Collateral Custodian shall review send notice of such receipt to the related Servicer, the Facility Agent and each Agent.
(ii) With respect to each Collateral and Required Asset Documents to confirm that (A) such Collateral Obligation File which has been properly executed and has no missing or mutilated pages, (B) any UCC and other filings (as set forth on the Asset Checklists) have been made, (C) an Insurance Policy exists with respect to any real or personal property constituting the Related Property, and (D) confirming the related Outstanding Asset Balance, Asset number and Obligor name with respect to such Asset is referenced on the related Asset List and is not a duplicate Asset (collectively, the “Review Criteria”). In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Asset Documents hereunder will be delivered to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian an electronic file (in EXCEL or a comparable format) that contains is acting exclusively as the related Asset List or that otherwise contains the Asset identification number and the name custodian of the Obligor with respect Secured Parties, and has no instructions to each related Asset. If, at hold any Collateral Obligation File for the conclusion benefit of any Person other than the Secured Parties and undertakes to perform such review, the Collateral Custodian shall determine that (i) the Outstanding Asset Balances of the Collateral it has received Required Asset Documents with respect to is less than duties and only such duties as are specifically set forth on the electronic 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 Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days to correct any non-compliance with a Review Criteria. If after the conclusion of such time period the Servicer has still not cured any non-compliance by an Asset with a Review Criteria, the Collateral Custodian shall promptly notify the Seller and the Administrative Agent of such 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 satisfyin this Agreement. In addition, if requested in writing by the Servicer and approved by the Administrative Agent within ten Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Asset which fails to satisfy a Review Criteria to the Seller. Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Asset Documents.
(ii) In so taking and retaining custody of the Required Asset DocumentsCollateral Obligation Files, the Collateral Custodian shall be deemed to be acting as for the agent purpose of the Administrative Agent and the Secured Parties; provided that perfecting the Collateral Custodian makes Agent’s security interest therein under the UCC. Except upon compliance with the provisions of Section 18.5, no representations as to Collateral Obligation File or other document constituting a part of a Collateral Obligation File shall be released from the existence, perfection or priority possession of any Lien on the Required Asset Documents or the instruments therein; and provided further that, the Collateral Custodian’s duties as agent shall be limited to those expressly contemplated herein.
(iii) All Required Asset Document The Collateral 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 Collateral Obligation File which comes into the possession of the Collateral Agent (other than documents delivered electronically) shall be kept maintained in fire fire-resistant vaults, rooms vaults or cabinets at the locations specified on Schedule III attached hereto, or at such other office as of the Collateral Custodian. Each Collateral Obligation File shall be specified to the Administrative Agent by the Collateral Custodian in a written notice delivered at least 45 days prior to such change. All Required Asset Documents shall be placed together marked with an appropriate identifying label and maintained in such a manner so as to permit retrieval and accessaccess by the Collateral Custodian and the Facility Agent. All Required Asset Documents The Collateral Custodian shall be keep the Collateral Obligation Files clearly segregated from any other documents or instruments maintained by the Collateral Custodianin its files.
(iv) The With respect to the documents comprising each Collateral Obligation File, the Collateral Custodian shall (i) act exclusively as Collateral Custodian for the Secured Parties, (ii) hold all documents constituting such Collateral Obligation File received by it for the exclusive use and benefit of the Secured Parties and (iii) make payments pursuant to disposition thereof only in accordance with the terms of this Agreement or with written instructions furnished by the Monthly Report Facility Agent; provided, that in accordance with Section 2.9 the event of a conflict between the terms of this Agreement and Section 2.10 (the “Payment Duties”)written instructions of the Facility Agent, the Facility Agent’s written instructions shall control.
(v) On each Reporting Date, the The Collateral Custodian shall provide accept only written instructions of an Executive Officer, in the case of the Borrower or the Servicer, or a written report to Responsible Officer, USActive 57084911.14 -140- in the Administrative Agent case of the Facility Agent, concerning the use, handling and disposition of the Servicer (in a form acceptable to the Administrative Agent) identifying each Asset for which it holds Required Asset Documents, the non-complying Assets and the applicable Review Criteria that any non-complying Asset fails to satisfyCollateral Obligation Files.
(vi) In performing its dutiesthe event that (i) the Borrower, the Facility Agent, any Agent, the Servicer, the Collateral Custodian or the Collateral Agent shall be served by a third party with any type of levy, attachment, writ or court order with respect to any Collateral Obligation File or a document included within a Collateral Obligation File or (ii) a third party shall institute any court proceeding by which any Collateral Obligation File or a document included within a Collateral Obligation File shall be required to be delivered otherwise than in accordance with the provisions of this Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the other parties to this Agreement (to the extent not prohibited by Applicable Law) copies of all court papers, orders, documents and other materials concerning such proceedings. The Collateral Custodian shall, to the extent permitted by law, continue to hold and maintain all the Collateral Obligation Files 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 Collateral Custodian shall use dispose of such Collateral Obligation File or a document included within such Collateral Obligation File as directed by the same degree Facility Agent, which shall give a direction consistent with such determination. Expenses of care the Collateral Custodian incurred as a result of such proceedings shall be borne by the Borrower.
(vii) The Facility Agent may direct the Collateral Custodian to take any such incidental action hereunder. With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and attention as shall be fully protected in acting or refraining from acting) upon the direction of the Facility Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Facility Agent, any Secured Parties 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 or otherwise (unless it employs 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 within ten (10) Business Days of its receipt of such request, then the Facility Agent shall be deemed to similar have declined to consent to the 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 it holds as this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Facility Agent. The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including a Facility Termination Event, unless a Responsible Officer of the Collateral Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)