Certain Duties and Powers. Except as otherwise expressly provided herein, the Escrow Agent (i) shall not be under any duty to give the Escrow Account any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed herein, (ii) may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may reasonably assume that the person purporting to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so, and (iii) may conclusively presume that (A) the representative of Buyer executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of Buyer, or appoint representatives of Buyer designated on Schedule C hereto to instruct the Escrow Agent on behalf of Buyer, unless written notice to the contrary is delivered to the Escrow Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively under this Agreement, all without further consent or direction from, or notice to, it or any other party.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Imation Corp), Agreement and Plan of Merger (Imation Corp)
Certain Duties and Powers. Except as otherwise expressly provided herein, (a) The Collateral Administrator shall assist the Escrow Agent (i) shall not be under any duty to give Borrower and the Escrow Account any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed herein, (ii) may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may reasonably assume that the person purporting to make any statement or execute any document Servicer in connection with monitoring the provisions hereof has been duly authorized to do so, Collateral Portfolio by maintaining a database on certain characteristics of the Collateral Portfolio on an ongoing basis and (iii) may conclusively presume that (A) the representative of Buyer executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of Buyer, or appoint representatives of Buyer designated on Schedule C hereto to instruct the Escrow Agent on behalf of Buyer, unless written notice providing to the contrary Borrower and the Servicer (and, where applicable, the Borrower’s independent professional accountants) certain reports, schedules, calculations and other data which the Borrower is delivered required to the Escrow Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute prepare and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively under this Agreement, all without further consent as well as providing the Borrower and the Servicer reasonable cooperation in respect thereof. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or direction fromthe Servicer hereunder. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) Not later than fifteen (15) Business Days after the date hereof, the Collateral Administrator shall create a collateral database with respect to the Collateral Portfolio (the “Collateral Database”) and update the Collateral Database daily for changes, including to reflect the sale or notice toother disposition of the Collateral Portfolio, it based upon, and to the extent of, information furnished to the Collateral Administrator by the Borrower as may be reasonably required by the Collateral Administrator. The Collateral Administrator shall permit access to the information in such Collateral Database by the Administrative Agent, the Servicer and the Borrower;
(ii) The Collateral Administrator shall track the receipt and daily allocation to the Accounts of Collections, the outstanding balances therein, and any withdrawals therefrom on each Business Day and provide such information to the Administrative Agent and the Servicer;
(iii) The Collateral Administrator shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator or as may be required by this Agreement, in each case as the Borrower, Servicer or the Administrative Agent may reasonably request from time to time;
(iv) The Collateral Administrator shall notify the Borrower, the Servicer and the Administrative Agent upon receiving notices, reports or proxies or any other partyrequests relating to corporate actions affecting the Collateral;
(v) The Collateral Administrator shall update the Collateral Database promptly for ratings changes;
(vi) The Collateral Administrator shall update the Collateral Database promptly for Loan Assets, Equity Securities and Permitted Investments acquired or sold or otherwise disposed of by the Borrower and for any amendments or changes to the outstanding principal balance of any Loan Asset or the interest rate thereon;
(vii) The Collateral Administrator shall assist and reasonably cooperate with the independent professional accountants in the preparation of those reports required hereunder;
(viii) The Collateral Administrator shall provide a written daily report to the Administrative Agent and the Servicer, commencing five (5) Business Days following the Closing Date, of (x) all deposits to and withdrawals from the Accounts and the outstanding balance as of the close of business on the preceding Business Day, and (y) a report of settled trades for the preceding Business Day; and
(ix) The Collateral Administrator shall provide the Servicer with such other information as may be reasonably requested in writing by the Servicer and as is within the possession of the Collateral Administrator.
(b) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, its own willful misconduct or its own bad faith, except that:
(i) the Collateral Administrator shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Collateral Administrator, unless it shall be proven that the Collateral Administrator was grossly negligent in ascertaining the pertinent facts;
(ii) no provision of this Agreement shall require the Collateral Administrator to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iii) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund), Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Certain Duties and Powers. Except as otherwise expressly provided herein(a) The Collateral Administrator shall assist the Borrower and the Collateral Manager in connection with monitoring the Collateral by maintaining a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Collateral Manager (and, where applicable, the Escrow Agent Borrower’s independent public accountants) certain reports, schedules, calculations all as more particularly described in this Section 15.02 below (in each case, such reports, schedules and calculations shall be prepared in such form and content, and in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as may be required by the Agreement) based upon information and data received from the Borrower and/or the Collateral Manager, as required to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations can be prepared and delivered) under Article VIII of this Agreement. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Collateral Manager hereunder or any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreement or any other Facility Document. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) create a collateral database of certain characteristics (to the extent required for the performance of its obligations hereunder, and otherwise as reasonably agreed to between the Collateral Administrator and the Collateral Manager) of the Collateral Loans and Eligible Investments credited from time to time to the Covered Accounts (the “Collateral Database”); within five (5) Business Days of the Closing Date;
(ii) permit access to the information in the Collateral database by the Collateral Manager and the Borrower;
(iii) update the Collateral Database promptly for ratings changes and for Collateral Loans, Equity Securities and Eligible Investments acquired or sold or otherwise disposed of and for any amendments or changes to Collateral Loan amounts or interest rates and, if direct online viewing access to the foregoing is unavailable, report any updates as of the close of business on the preceding Business Day to the Collateral database to the Administrative Agent no later than 5:00 p.m. on each Business Day, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of cash to the Collection Account and any withdrawals therefrom (including the applicable Interest Rates provided to the Collateral Administrator by the Administrative Agent) and, if direct online viewing access to the foregoing is unavailable, report the balances of the Collection Account to the Administrative Agent no later than 5:00 p.m. on each Business Day as of the close of business on the preceding Business Day;
(v) prepare and make available to the parties required under this Agreement each of the Monthly Reports which are required to be provided pursuant to Section 8.09(a) of this Agreement by the time specified in this agreement and on the basis of the information contained in the Collateral Database or as provided to the Collateral Administrator by the Borrower, Collateral Manager or Administrative Agent; and
(vi) provide the Collateral Manager with such other information as may be reasonably requested in writing by the Collateral Manager and as is within the possession of the Collateral Administrator.
(b) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) this subsection shall not be under any duty construed to give limit the Escrow Account any greater degree effect of care than it gives its own similar property and subsection (a) of this Section 15.02;
(ii) the Collateral Administrator shall not be required to invest liable for any funds held hereunder except as directed hereinerror of judgment made in good faith by a Responsible Officer of the Collateral Administrator, (ii) may act in reliance upon any instrument or signature reasonably believed by unless it to shall be genuine and may reasonably assume proven that the person purporting Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud or willful misconduct;
(iii) no provision of this Agreement shall require the Collateral Administrator to make expend or risk its own funds or otherwise incur any statement financial or execute other liability in the performance of any document of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iv) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
(c) Upon request of the Collateral Administrator, the Borrower and the Collateral Manager shall cooperate with the Collateral Administrator in connection with the provisions hereof has been duly authorized matters described herein, including calculations and information relating to do so, and (iii) may conclusively presume that (A) the representative Monthly Reports or as otherwise reasonably requested hereunder. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of Buyer executing any item of Collateral under this Agreement has full power (it being understood that any such characterization or categorization shall be based exclusively upon the determination and authority notification received by the Collateral Administrator from the Collateral Manager). To the extent the Collateral Manager becomes actually aware that the information with respect to instruct any Collateral Loan in any report, instruction or certificate required to be delivered by the Escrow Agent on behalf Collateral Administrator conflicts with information, data or calculations in the records of Buyerthe Collateral Manager, or appoint representatives the Collateral Manager shall notify the Collateral Administrator of Buyer designated on Schedule C hereto such discrepancy and use commercially reasonable efforts to instruct assist the Escrow Agent on behalf Collateral Administrator in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Collateral Manager in connection with the Collateral Manager’s review of Buyerthe contents of the aforesaid reports, unless written notice instruction and certificates and will use commercially reasonable efforts to provide such items to the contrary is delivered to Collateral Manager within a reasonably sufficient time (as agreed between the Escrow Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer Collateral Manager and the Selling Parties’ Representative respectively under this Agreement, all without further consent or direction from, or notice to, it or Collateral Administrator) prior to any other partyapplicable due date to enable such review.
Appears in 1 contract
Samples: Credit and Security Agreement (Blackstone Private Credit Fund)
Certain Duties and Powers. Except as otherwise expressly provided herein(a) The Collateral Administrator shall assist the Borrower and the Collateral Manager in connection with monitoring the Collateral by maintaining a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Collateral Manager (and, where applicable, the Escrow Agent Borrower’s independent public accountants) certain reports, schedules, calculations all as more particularly described in this Section 15.02 below (in each case, such reports, schedules and calculations shall be prepared in such form and content, and in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as may be required by the Agreement) based upon information and data received from the Borrower and/or the Collateral Manager, as required to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations can be prepared and delivered) under Article VIII of this Agreement. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement and no implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Collateral Administrator. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Collateral Manager hereunder or any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreement or any other Facility Document. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) create a collateral database of certain characteristics (to the extent required for the performance of its obligations hereunder, and otherwise as reasonably agreed to between the Collateral Administrator and the Collateral Manager) of the Collateral Assets and Eligible Investments credited from time to time to the Covered Accounts (the “Collateral Database”); within ten (10) Business Days of the Closing Date;
(ii) permit access to the information in the Collateral database by the Collateral Manager and the Borrower;
(iii) update the Collateral Database promptly for ratings changes and for Collateral Assets, Equity Securities and Eligible Investments acquired or sold or otherwise disposed of and for any amendments or changes to Collateral Asset amounts or interest rates (as notified to the Collateral Administrator by the Collateral Manager) and, if direct online viewing access to the foregoing is unavailable, report any updates as of the close of business on the preceding Business Day to the Collateral database to the Administrative Agent no later than 5:00 p.m. on each Business Day, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of cash to the Collection Accounts and any withdrawals therefrom (including the applicable Interest Rates provided to the Collateral Administrator by the Administrative Agent) and, if direct online viewing access to the foregoing is unavailable, report the balances of the Collection Accounts to the Administrative Agent no later than 5:00 p.m. on each Business Day as of the close of business on the preceding Business Day;
(v) prepare and make available to the parties required under this Agreement each of the Monthly Reports and Payment Date Reports which are required to be provided pursuant to Section 8.09(a) of this Agreement by the time specified in this agreement and on the basis of the information contained in the Collateral Database or as provided to the Collateral Administrator by the Borrower, Collateral Manager or Administrative Agent; and
(vi) provide the Collateral Manager with such other information as may be reasonably requested in writing by the Collateral Manager and as is within the possession of the Collateral Administrator.
(b) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) this subsection shall not be under any duty construed to give limit the Escrow Account any greater degree effect of care than it gives its own similar property and subsection (a) of this Section 15.02;
(ii) the Collateral Administrator shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Collateral Administrator, unless it shall be proven that the Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud or willful misconduct;
(iii) no provision of this Agreement shall require the Collateral Administrator to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iv) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
(c) The Borrower and the Collateral Manager shall cooperate with the Collateral Administrator in connection with the matters described herein, including calculations and information relating to the Monthly Reports and Payment Date Reports or as otherwise reasonably requested hereunder. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of any item of Collateral under this Agreement (it being understood that any such characterization or categorization shall be based exclusively upon the determination and notification received by the Collateral Administrator from the Collateral Manager). The Collateral Manager shall review and approve the contents of the aforesaid reports. To the extent the Collateral Manager becomes actually aware that the information with respect to any Collateral Asset in any report, instruction or certificate required to invest be delivered by the Collateral Administrator conflicts with information, data or calculations in the records of the Collateral Manager, the Collateral Manager shall notify the Collateral Administrator of such discrepancy and use commercially reasonable efforts to assist the Collateral Administrator in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Collateral Manager in connection with the Collateral Manager’s review of the contents of the aforesaid reports, instruction and certificates and will use commercially reasonable efforts to provide such items to the Collateral Manager within a reasonably sufficient time (as agreed between the Collateral Manager and the Collateral Administrator) prior to any funds held applicable due date to enable such review. The Collateral Administrator shall have no obligation to determine the Borrowing Base. Nothing herein shall obligate the Collateral Administrator to review or examine any underlying instrument or contract evidencing, governing or guaranteeing or securing any Collateral Asset in order to verify, confirm, audit or otherwise determine any characteristic thereof.
(d) The Collateral Administrator shall have no obligation to determine the Asset Value or the price of any Collateral in connection with any actions or duties under this Agreement. Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(e) The Collateral Administrator shall in no event have any liability for the actions or omissions of the Borrower, the Collateral Manager, the Administrative Agent, the Custodian (but only if not the same Person as the Collateral Administrator) or any other Person, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Collateral Manager, the Custodian (but only if not the same Person as the Collateral Administrator) or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Administrator’s own willful misconduct, gross negligence or fraud. The Collateral Administrator shall not be liable for failing to perform or any delay in performing its specified duties hereunder except which results from or is caused by a failure or delay on the part of the Borrower, the Collateral Manager, the Administrative Agent, the Custodian (but only if not the same Person as directed the Collateral Administrator) or any other Person in furnishing necessary, timely and accurate information to the Collateral Administrator.
(f) It is expressly acknowledged by the Borrower and the Collateral Manager that application and performance by the Collateral Administrator of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data and information provided to it by the Collateral Manager (and/or the Borrower) with respect to the Collateral, and the Collateral Administrator shall have no responsibility for the accuracy of any such information or data provided to it by such Persons. Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Administrator to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any obligor under the Collateral is in default or in compliance with the underlying documents governing or securing such securities, from time to time, the role of the Collateral Administrator hereunder being solely to perform certain mathematical computations and data comparisons and to provide certain reports and other deliveries, as provided herein. For purposes of monitoring changes in ratings, the Collateral Administrator shall be entitled to use and rely (in good faith) exclusively upon one or more reputable electronic financial information reporting services, and shall have no liability for any inaccuracies in the information reported by, or other errors or omissions of, any such services.
(g) Nothing herein shall obligate the Collateral Administrator to determine independently any characteristic of a Collateral Asset, or to evaluate or verify the Collateral Manager’s characterization of any Collateral Asset, including whether any item of Collateral is a Revolving Collateral Asset, Delayed Drawdown Collateral Asset, Fixed Rate Obligation, Noteless Loan, PIK Loan (including Acquired PIK Loan or Post-Acquisition PIK Loan), DIP Loan, Eligible Collateral Asset, Ineligible Collateral Asset, Equity Security, Private Credit Loan, Middle Market Loan, MRR Loan, First Lien Last Out Loan, Floor Obligation, Senior Unsecured Bond, Second Lien Loan, Structured Finance Obligation, Certificated Security, Covenant Lite Loan or Uncertificated Security, any such determination being based exclusively upon notification the Collateral Administrator receives from the Collateral Manager or from (or in its capacity as) the Collateral Agent (based upon notices received by the Collateral Agent from the obligor, trustee or agent bank under an underlying governing document, or similar source) and nothing herein shall obligate the Collateral Administrator to review or examine any underlying instrument or contract evidencing, governing or guaranteeing or securing any Collateral Asset in order to verify, confirm, audit or otherwise determine any characteristic thereof. In addition, the Collateral Manager shall notify the Collateral Administrator of any amendment or modification of a Collateral Asset to the extent a Responsible Officer of the Collateral Manager has actual knowledge of such amendment or modification.
(h) The Collateral Administrator shall promptly forward to the Collateral Manager (i) copies of notices and other writings received by it, in its capacity as Collateral Administrator hereunder, from the Obligor or other Person with respect to any Collateral Asset or from any Clearing Agency with respect to any Collateral Asset advising the holders of such obligation of any rights that the holders might have with respect thereto (including notices of calls and redemptions thereof), (ii) may act in reliance upon any instrument or signature reasonably believed all periodic financial reports received by it from such Obligor or other Person with respect to be genuine such obligation and may reasonably assume that the person purporting Clearing Agencies with respect to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so, such Obligor and (iii) may conclusively presume copies of all documents, legal opinions or any other information, including without limitation, any notices, reports, requests for waiver, consent requests or any other requests relating to corporate actions affecting the Collateral Assets received by it (other than any Bond, Equity Security, or any other Collateral Asset that (A) is not in the representative form of Buyer executing a loan), in each case to the extent actually received by it in its capacity as Collateral Administrator hereunder. For the avoidance of doubt, Collateral Administrator shall have no liability or responsibility with respect to any such notices or other documents other than to provide them to the Collateral Manager in accordance with this Agreement has full power and authority the Collateral Administrator shall not be responsible for any actions required or requested to instruct be taken or any discretion to be exercised in connection with such notices or documents which, in each case shall be exercised by the Escrow Agent Borrower (or the Collateral Manager on behalf of Buyerits behalf). With respect to any notices, reports, requests for waiver, consent requests or any other requests relating to corporate actions affecting any Bond, Equity Security, or appoint representatives any other Collateral Asset that is not in the form of Buyer designated on Schedule C hereto to instruct a loan (together, the Escrow “Permitted Non-Loan Corporate Actions”), the delivery of such shall be made solely via the Bank’s corporate action notification system or such other notification method as may be implemented by the Collateral Agent on behalf of Buyer, unless with written notice to the contrary is delivered Collateral Manager. In order to receive such Permitted Non-Loan Corporate Actions, the Escrow Collateral Manager shall be required to register for an account with Citibank’s corporate action notification system. Other than the Bank providing access to such Permitted Non-Loan Corporate Actions as described in this paragraph, neither the Collateral Administrator nor the Collateral Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority shall have any obligation or liability with respect to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively under this Agreement, all without further consent or direction from, or notice to, it or any other partyPermitted Non-Loan Corporate Actions.
Appears in 1 contract
Certain Duties and Powers. Except as otherwise expressly provided herein, (a) The Collateral Administrator shall assist the Escrow Agent (i) shall not be under any duty to give Borrower and the Escrow Account any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed herein, (ii) may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may reasonably assume that the person purporting to make any statement or execute any document Collateral Manager in connection with monitoring the provisions hereof has been duly authorized to do so, Collateral by maintaining a database on certain characteristics of the Collateral on an ongoing basis and (iii) may conclusively presume that (A) the representative of Buyer executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of Buyer, or appoint representatives of Buyer designated on Schedule C hereto to instruct the Escrow Agent on behalf of Buyer, unless written notice providing to the contrary Borrower and the Collateral Manager (and, where applicable, the Borrower’s independent accountants) certain reports, schedules, calculations and other data which the Borrower is delivered required to the Escrow Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute prepare and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively under this Agreement, all without further consent as well as providing the Borrower and the Collateral Manager reasonable cooperation in respect thereof. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or direction fromthe Collateral Manager hereunder. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) create a database with respect to the Collateral credited to the Covered Accounts within five (5) days of the Closing Date;
(ii) permit access to the information in the Collateral database by the Collateral Manager and the Borrower;
(iii) update the Collateral database promptly for ratings changes;
(iv) update the Collateral database promptly for Collateral Loans, Equity Securities and Eligible Investments acquired or sold or otherwise disposed of and for any amendments or changes to Collateral Loan amounts or interest rates and, if direct online viewing access to the foregoing is unavailable, report any updates to the Collateral database to the Administrative Agent no later than 12:00 noon on each Business Day as of the close of business on the preceding Business Day;
(v) track the receipt and daily allocation of cash to the Interest Collection Account and Principal Collection Account and any withdrawals therefrom and, if direct online viewing access to the foregoing is unavailable, report the balances of the Interest Collection Account and Principal Collection Account to the Administrative Agent no later than 12:00 noon on each Business Day as of the close of business on the preceding Business Day;
(vi) prepare and arrange for the delivery of each Monthly Report and Payment Date Report;
(vii) forward to the Collateral Manager copies of notices and other writings received by it, in its capacity as Collateral Administrator, from the obligor or other person with respect to the Collateral; and
(viii) provide the Collateral Manager with such other information as may be reasonably requested in writing by the Collateral Manager and as is within the possession of the Collateral Administrator.
(b) Not later than the day on which (i) each Monthly Report is required to be provided pursuant to Section 8.07(a) or (ii) each Payment Date Report is required to be provided pursuant to Section 8.07(b), the Collateral Administrator shall calculate, using the information contained in the Collateral database created by the Collateral Administrator pursuant to Section 15.02(a) above and any other Collateral information normally maintained by Virtus, and subject to the Collateral Administrator’s receipt from the Collateral Manager of the information required to be provided by it pursuant to Section 8.07, each item required to be stated in such Monthly Report or Payment Date Report in accordance with this Agreement and provide such information to the Borrower, the Collateral Manager and the Administrative Agent in a form mutually acceptable to the Borrower, the Collateral Manager, the Administrative Agent and the Collateral Administrator.
(c) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, or notice toits own willful misconduct, except that:
(i) this subsection shall not be construed to limit the effect of subsection (a) of this Section 15.02;
(ii) the Collateral Administrator shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Collateral Administrator, unless it shall be proven that the Collateral Administrator was grossly negligent in ascertaining the pertinent facts;
(iii) no provision of this Agreement shall require the Collateral Administrator to expend or risk its own funds or otherwise incur any other partyfinancial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iv) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
Appears in 1 contract
Samples: Credit and Security Agreement (FS Investment Corp II)
Certain Duties and Powers. Except as otherwise expressly provided herein(a) The Collateral Administrator shall assist the Borrower and the Collateral Manager in connection with monitoring the Collateral by maintaining a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Collateral Manager (and, where applicable, the Escrow Agent Borrower’s independent public accountants) certain reports, schedules, calculations all as more particularly described in this Section 15.02 below (in each case, such reports, schedules and calculations shall be prepared in such form and content, and in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as may be required by the Agreement) based upon information and data received from the Borrower and/or the Collateral Manager, as required to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations can be prepared and delivered) under Article VIII of this Agreement. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement and no implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Collateral Administrator. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Collateral Manager hereunder or any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreement or any other Facility Document. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) create a collateral database of certain characteristics (to the extent required for the performance of its obligations hereunder, and otherwise as reasonably agreed to between the Collateral Administrator and the Collateral Manager) of the Collateral Assets and Eligible Investments credited from time to time to the Covered Accounts (the “Collateral Database”); within fifteen (15) Business Days of the Closing Date;
(ii) permit access to the information in the Collateral database by the Collateral Manager and the Borrower;
(iii) update the Collateral Database promptly for ratings changes and for Collateral Assets, Equity Securities and Eligible Investments acquired or sold or otherwise disposed of and for any amendments or changes to Collateral Asset amounts or interest rates and, if direct online viewing access to the foregoing is unavailable, report any updates as of the close of business on the preceding Business Day to the Collateral database to the Administrative Agent no later than 5:00 p.m. on each Business Day, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of cash to the Collection Account and any withdrawals therefrom (including the applicable Interest Rates provided to the Collateral Administrator by the Administrative Agent) and, if direct online viewing access to the foregoing is unavailable, report the balances of the Collection Account to the Administrative Agent no later than 5:00 p.m. on each Business Day as of the close of business on the preceding Business Day;
(v) draft and make available to the parties required under this Agreement each of the Monthly Reports which are required to be provided pursuant to Section 8.07(a) of this Agreement by the time specified in this agreement and on the basis of the information contained in the Collateral Database or as provided to the Collateral Administrator by the Borrower, the Collateral Manager or the Administrative Agent; and
(vi) provide the Collateral Manager with such other information as may be reasonably requested in writing by the Collateral Manager and as is within the possession of the Collateral Administrator.
(b) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) this subsection shall not be under any duty construed to give limit the Escrow Account any greater degree effect of care than it gives its own similar property and subsection (a) of this Section 15.02;
(ii) the Collateral Administrator shall not be required to invest liable for any funds held hereunder except as directed hereinerror of judgment made in good faith by a Responsible Officer of the Collateral Administrator, (ii) may act in reliance upon any instrument or signature reasonably believed by unless it to shall be genuine and may reasonably assume proven that the person purporting Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud or willful misconduct;
(iii) no provision of this Agreement shall require the Collateral Administrator to make expend or risk its own funds or otherwise incur any statement financial or execute other liability in the performance of any document of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iv) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
(c) The Borrower and the Collateral Manager shall cooperate with the Collateral Administrator in connection with the provisions hereof has been duly authorized matters described herein, including calculations and information relating to do so, and (iii) may conclusively presume that (A) the representative Monthly Reports or as otherwise reasonably requested hereunder. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of Buyer executing any item of Collateral under this Agreement has full power (it being understood that any such characterization or categorization shall be based exclusively upon the determination and authority notification received by the Collateral Administrator from the Collateral Manager). The Collateral Manager shall review and approve the contents of the aforesaid reports. To the extent the Collateral Manager becomes actually aware that the information with respect to instruct any Collateral Asset in any report, instruction or certificate required to be delivered by the Escrow Agent on behalf Collateral Administrator conflicts with information, data or calculations in the records of Buyerthe Collateral Manager, or appoint representatives the Collateral Manager shall notify the Collateral Administrator of Buyer designated on Schedule C hereto such discrepancy and use commercially reasonable efforts to instruct assist the Escrow Agent on behalf Collateral Administrator in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Collateral Manager in connection with the Collateral Manager’s review of Buyerthe contents of the aforesaid reports, unless written notice instruction and certificates and will use commercially reasonable efforts to provide such items to the contrary is delivered to Collateral Manager within a reasonably sufficient time (as agreed between the Escrow Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer Collateral Manager and the Selling Parties’ Representative respectively Collateral Administrator) prior to any applicable due date to enable such review.
(d) The Collateral Administrator shall have no obligation to determine the Asset Value or the price of any Collateral in connection with any actions or duties under this Agreement. Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(e) The Collateral Administrator shall in no event have any liability for the actions or omissions of the Borrower, all without further consent or direction fromthe Collateral Manager, or notice tothe Administrative Agent, it the Custodian (but only if not the same Person as the Collateral Administrator) or any other partyPerson, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Collateral Manager, the Custodian (but only if not the same Person as the Collateral Administrator) or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Administrator’s own willful misconduct, gross negligence or fraud. The Collateral Administrator shall not be liable for failing to perform or any delay in performing its specified duties hereunder which results from or is caused by a failure or delay on the part of the Borrower, the Collateral Manager, the Administrative Agent, the Custodian (but only if not the same Person as the Collateral Administrator) or any other Person in furnishing necessary, timely and accurate information to the Collateral Administrator.
(f) It is expressly acknowledged by the Borrower and the Collateral Manager that application and performance by the Collateral Administrator of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data and information provided to it by the Collateral Manager (and/or the Borrower) with respect to the Collateral, and the Collateral Administrator shall have no responsibility for the accuracy of any such information or data provided to it by such Persons. Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Administrator to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any obligor under the Collateral is in default or in compliance with the underlying documents governing or securing such securities, from time to time, the role of the Collateral Administrator hereunder being solely to perform certain mathematical computations and data comparisons and to provide certain reports and other deliveries, as provided herein. For purposes of monitoring changes in ratings, the Collateral Administrator shall be entitled to use and rely (in good faith) exclusively upon one or more reputable electronic financial information reporting services, and shall have no liability for any inaccuracies in the information reported by, or other errors or omissions of, any such services.
(g) Nothing herein shall obligate the Collateral Administrator to determine independently any characteristic of a Collateral Asset, or to evaluate or verify the Collateral Manager’s characterization of any Collateral Asset, including whether any item of Collateral is a Revolving Collateral Asset, Delayed Drawdown Collateral Asset, Fixed Rate Obligation, Noteless Loan, PIK Loan (including any Post-Acquisition PIK Loan), DIP Loan, Eligible Collateral Asset, Ineligible Collateral Asset, Equity Security, Middle Market Loan, MRR Loan, First Lien Last Out Loan, Floor Obligation, Broadly Syndicated Loan, Second Lien Loan, Structured Finance Obligation, Certificated Security, Covenant Lite Loan or Uncertificated Security, any such determination being based exclusively upon notification the Collateral Administrator receives from the Collateral Manager or from (or in its capacity as) the Collateral Agent (based upon notices received by the Collateral Agent from the obligor, trustee or agent bank under an underlying governing document, or similar source) and nothing herein shall obligate the Collateral Administrator to review or examine any underlying instrument or contract evidencing, governing or guaranteeing or securing any Collateral Asset in order to verify, confirm, audit or otherwise determine any characteristic thereof.
Appears in 1 contract
Samples: Credit and Security Agreement (Fidelity Private Credit Fund)
Certain Duties and Powers. Except as otherwise expressly provided herein, (a) The Collateral Administrator shall assist the Escrow Agent (i) shall not be under any duty to give Borrower and the Escrow Account any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed herein, (ii) may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may reasonably assume that the person purporting to make any statement or execute any document Servicer in connection with monitoring the provisions hereof has been duly authorized to do so, Collateral Portfolio by maintaining a database on certain characteristics of the Collateral Portfolio on an ongoing basis and (iii) may conclusively presume that (A) the representative of Buyer executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of Buyer, or appoint representatives of Buyer designated on Schedule C hereto to instruct the Escrow Agent on behalf of Buyer, unless written notice providing to the contrary Borrower and the Servicer (and, where applicable, the Borrower’s independent professional accountants) certain reports, schedules, calculations and other data which the Borrower is delivered required to the Escrow Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute prepare and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively under this Agreement, all without further consent as well as providing the Borrower and the Servicer reasonable cooperation in respect thereof. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or direction fromthe Servicer hereunder. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) Not later than fifteen (15) Business Days after the date hereof, the Collateral Administrator shall create a collateral database with respect to the Collateral Portfolio (the “Collateral Database”) and update the Collateral Database daily for changes, including to reflect the sale or notice toother disposition of the Collateral Portfolio, it based upon, and to the extent of, information furnished to the Collateral Administrator by the Borrower as may be reasonably required by the Collateral Administrator. The Collateral Administrator shall permit access to the information in such Collateral Database by the Servicer and the Borrower;
(ii) The Collateral Administrator 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 Servicer daily reports reflecting such actions as of the close of business on the preceding Business Day;
(iii) The Collateral Administrator shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator or as may be required by this Agreement, in each case as the Borrower, Servicer or the Administrative Agent may reasonably request from time to time;
(iv) The Collateral Administrator shall notify the Borrower, the Servicer and the Administrative Agent upon receiving notices, reports or proxies or any other partyrequests relating to corporate actions affecting the Collateral;
(v) The Collateral Administrator shall update the Collateral Database promptly for ratings changes;
(vi) The Collateral Administrator shall update the Collateral Database promptly for Loan Assets, Bonds, Equity Securities and Permitted Investments acquired or sold or otherwise disposed of by the Borrower and for any amendments or changes to the outstanding principal balance of any Loan Asset or the interest rate thereon;
(vii) The Collateral Administrator shall assist and reasonably cooperate with the independent professional accountants in the preparation of those reports required hereunder;
(viii) The Collateral Administrator shall provide a written daily report to the Administrative Agent and the Servicer of (x) all deposits to and withdrawals from the
(ix) Accounts for such Business Day and the outstanding balance as of the end of such Business Day, and (y) a report of settled trades for such Business Day; and
(x) The Collateral Administrator shall provide the Servicer with such other information as may be reasonably requested in writing by the Servicer and as is within the possession of the Collateral Administrator.
(b) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, its own willful misconduct or its own bad faith, except that:
(i) the Collateral Administrator shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Collateral Administrator, unless it shall be proven that the Collateral Administrator was grossly negligent in ascertaining the pertinent facts;
(ii) no provision of this Agreement shall require the Collateral Administrator to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iii) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Certain Duties and Powers. Except as otherwise expressly provided herein(a) The Collateral Administrator shall assist the Borrower and the Servicer in connection with monitoring the Collateral by maintaining a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Servicer (and, where applicable, the Escrow Agent Borrower’s independent public accountants) certain reports, schedules, calculations all as more particularly described in this Section 13.02 below (in each case, such reports, schedules and calculations shall be prepared in such form and content, and in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as may be required by this Agreement) based upon information and data received from the Borrower and/or the Servicer, as required to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations can be prepared and delivered) under ARTICLE VI of this Agreement. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement and no implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Collateral Administrator. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Servicer hereunder or any other Transaction Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Servicer under or pursuant to this Agreement or any other Transaction Document. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) as promptly as possible after the Closing Date and in any event no later than fifteen (15) days, the Collateral Administrator shall create a database (the “Collateral Database”) with respect to the Loan Assets held by the Borrower on the Closing Date, which Collateral Database shall include all information reasonably requested by the Administrative Agent with respect to the Loan Assets and the Collateral, on an individual Loan Asset basis and on a portfolio basis. The Collateral Administrator shall permit access to the information in the Collateral Database by the Servicer, the Borrower and the Administrative Agent no later than the Closing Date. The Collateral Administrator shall provide a daily report to the Servicer, the Borrower and the Administrative Agent (for delivery to the Lenders), in an electronic format and in scope mutually acceptable to the Collateral Administrator, the Servicer, the Borrower and the Administrative Agent, that summarizes the material information contained in the Collateral Database, including, without limitation, the Outstanding Balance of the Collateral and balances of the Controlled Accounts. The Collateral Administrator shall update the Collateral Database promptly for Loan Assets and Permitted Investments acquired or sold or otherwise disposed of and for any amendments or changes to Loan Asset amounts or interest rates;
(ii) permit access to the information in the Collateral Database by the Servicer and the Borrower;
(iii) update the Collateral Database promptly for ratings changes and for Loan Assets, Equity Securities and Permitted Investments acquired or sold or otherwise disposed of and for any amendments or changes to Loan Asset amounts or interest rates (as notified to the Collateral Administrator by the Servicer) and, if direct online viewing access to the foregoing is unavailable, report any updates as of the close of business on the preceding Business Day to the Collateral Database to the Administrative Agent no later than 5:00 p.m. on each Business Day, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Servicer as may be reasonably required by the Collateral Administrator, or by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of cash to the Interest Collection Subaccount and Principal Collection Subaccount and any withdrawals therefrom (including the applicable interest rates provided to the Collateral Administrator by the Administrative Agent) and, on each Business Day, provide to the Servicer daily reports reflecting such actions to the Interest Collection Subaccount and Principal Collection Subaccount as of the close of business on the preceding Business Day; provided that if direct online viewing access to the foregoing is unavailable, report the balances of the Collection Account to the Administrative Agent no later than 5:00 p.m. on each Business Day as of the close of business on the preceding Business Day, and shall further provide to the Servicer a statement as to the amount of Interest Collections and Principal Collections on deposit in the Interest Collection Subaccount and the Principal Collection Subaccount no later than three (3) Business Days prior to each Determination Date for inclusion in the Servicing Report delivered pursuant to Section 6.08(b);
(v) in connection with each Payment Date, the Collateral Administrator shall prepare and arrange for the delivery of each item to be included in the Servicing Report pursuant to Section 6.08(b)(v) not later than the day that is two (2) Business Days prior to the applicable Payment Date to the Borrower and the Servicer (and, following the delivery of a Notice of Exclusive Control, the Administrative Agent and the Servicer) for the Servicer’s (or Administrative Agent’s, as applicable) review. The parties acknowledge that the Collateral Administrator shall not be responsible for determining the Yield with respect to any Advance, which shall be solely provided by the Administrative Agent;
(vi) calculate amounts to be remitted pursuant to Section 2.04 to the applicable parties and notify the Servicer and the Administrative Agent;
(vii) provide the Borrower, the Servicer and the Administrative Agent a copy of all notices, reports or proxies or any other requests or communications identified as being sent to it in connection with the Loan Assets and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Administrator be under any duty or obligation to give take any action on behalf of the Escrow Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Servicer, prior to the occurrence of an Event of Default, or the Administrative Agent, after the occurrence of Event of Default, in which event the Collateral Administrator shall vote, consent or take such other action in accordance with such instructions;
(viii) on each Business Day, provide the cash flow and position report of the Borrower to the Administrative Agent;
(ix) provide the Servicer with such other information as may be reasonably requested in writing by the Servicer and as is within the possession of the Collateral Administrator; and
(x) no later than the fifth (5th) Business Day following the end of each month, provide to the Administrative Agent an itemized list and brief description of all amounts withdrawn from the Collection Account any greater degree during the applicable month.
(b) No provision of care than it gives this Agreement shall be construed to relieve the Collateral Administrator from liability for its own similar property and grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) the Collateral Administrator shall not be required to invest liable for any funds held hereunder except as directed hereinerror of judgment made in good faith by a Responsible Officer of the Collateral Administrator, unless it shall be proven that the Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud or willful misconduct;
(ii) may act no provision of this Agreement shall require the Collateral Administrator to expend or risk its own funds or otherwise incur any financial or other liability in reliance upon the performance of any instrument of its duties hereunder, or signature in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably believed by assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iii) in no event shall the Collateral Administrator be genuine liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and may reasonably assume that regardless of the person purporting to make any statement or execute any document form of such action.
(c) The Borrower and the Servicer shall cooperate with the Collateral Administrator in connection with the provisions hereof has been duly authorized matters described herein, including calculations and information relating to do so, and (iii) may conclusively presume that (A) the representative Servicing Reports or as otherwise reasonably requested hereunder. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of Buyer executing any item of Collateral under this Agreement has full power (it being understood that any such characterization or categorization shall be based exclusively upon the determination and authority to instruct notification received by the Escrow Agent on behalf of Buyer, or appoint representatives of Buyer designated on Schedule C hereto to instruct Collateral Administrator from the Escrow Agent on behalf of Buyer, unless written notice to the contrary is delivered to the Escrow Agent by Buyer, and Servicer). The Servicer (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ RepresentativeBorrower) shall review and verify the contents of the aforesaid reports. To the extent any of the information in such reports, instructions or appoint representatives certificates conflicts with information, data or calculations in the records of Selling Parties’ Representative designated on Schedule C hereto the Servicer, the Servicer shall notify the Collateral Administrator of such discrepancy and use commercially reasonable efforts to instruct assist the Escrow Agent Collateral Administrator in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Servicer in connection with the Servicer’s review of the contents of the aforesaid reports, instruction and certificates and will use commercially reasonable efforts to provide such items to the Servicer within a reasonably sufficient time (as agreed between the Servicer (on behalf of the Selling Parties’ RepresentativeBorrower) and the Collateral Administrator) prior to any applicable due date to enable such review. The Servicer further agrees to send such reports, unless written notice instructions, statements and certificates to the contrary is delivered to the Escrow Agent by the Selling Parties’ RepresentativeBorrower for execution. The applicable persons designated on Schedule C hereto Collateral Administrator shall have full power and authority no obligation to execute and deliver determine the Borrowing Base, any Joint Instruction, Borrowing Base Value or whether any Borrowing Base Deficiency has occurred.
(d) The Collateral Administrator shall have no obligation to amend, modify determine the market value or waive the price of any provision of this Escrow Agreement and to take Collateral in connection with any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively or duties under this Agreement. Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(e) The Collateral Administrator shall in no event have any liability for the actions or omissions of the Borrower, all without further consent or direction fromthe Servicer, or notice tothe Administrative Agent, it the Collateral Custodian or any other partyPerson, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Servicer, the Collateral Custodian or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Administrator’s own bad faith, willful misconduct, gross negligence, fraud or reckless disregard of its duties hereunder. The Collateral Administrator shall not be liable for failing to perform or any delay in performing its specified duties hereunder which results from or is caused by a failure or delay on the part of the Borrower, the Servicer, the Administrative Agent, the Collateral Custodian or any other Person in furnishing necessary, timely and accurate information to the Collateral Administrator.
(f) It is expressly acknowledged by the Borrower and the Servicer that application and performance by the Collateral Administrator of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data and information provided to it by the Servicer (and/or the Borrower) with respect to the Collateral, and the Collateral Administrator shall have no responsibility for the accuracy of any such information or data provided to it by such Persons. Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Administrator to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any obligor under the Collateral is in default or in compliance with the underlying documents governing or securing such securities, from time to time, the role of the Collateral Administrator hereunder being solely to perform certain mathematical computations and data comparisons and to provide certain reports and other deliveries, as provided herein. For purposes of monitoring changes in ratings, the Collateral Administrator shall be entitled to use and rely (in good faith) exclusively upon one or more reputable electronic financial information reporting services, and shall have no liability for any inaccuracies in the information reported by, or other errors or omissions of, any such services.
(g) Nothing herein shall obligate the Collateral Administrator to determine independently any characteristic of a Loan Asset, or to evaluate or verify the Servicer’s characterization of any Loan Asset, including whether any item of Collateral is a Revolving Loan, Delayed Draw Loan Asset, fixed rate Loan Asset, Noteless Loan, DIP Loan, Eligible Loan Asset, Equity Security, First Lien Loan, FLLO Loan, Second Lien Loan, Structured Finance Obligation or Cov-Lite Loan Asset, any such determination being based exclusively upon notification the Collateral Administrator receives from the Servicer or from (or in its capacity as) the Collateral Agent (based upon notices received by the Collateral Agent from the obligor, trustee or agent bank under an underlying governing document, or similar source) and nothing herein shall obligate the Collateral Administrator to review or examine any underlying instrument or contract evidencing, governing or guaranteeing or securing any Loan Asset in order to verify, confirm, audit or otherwise determine any characteristic thereof. In addition, the Servicer shall notify the Collateral Administrator of any amendment or modification of a Loan Asset to the extent a Responsible Officer of the Servicer has actual knowledge of such amendment or modification.
Appears in 1 contract
Certain Duties and Powers. Except as otherwise expressly provided herein(a) The Collateral Administrator shall assist the Borrower and the Collateral Manager in connection with monitoring the Collateral by maintaining a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Collateral Manager (and, where applicable, the Escrow Agent Borrower’s independent public accountants) certain reports, schedules, calculations all as more particularly described in this Section 15.02 below (in each case, such reports, schedules and calculations shall be prepared in such form and content, and in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as may be required by the Agreement) based upon information and data received from the Borrower and/or the Collateral Manager, as required to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations can be prepared and delivered) under Article VIII of this Agreement. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Collateral Manager hereunder or any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreement or any other Facility Document. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) create a collateral database of certain characteristics (to the extent required for the performance of its obligations hereunder, and otherwise as reasonably agreed to between the Collateral Administrator and the Collateral Manager) of the Collateral Assets and Eligible Investments credited from time to time to the Covered Accounts (the “Collateral Database”); within five (5) Business Days of the Closing Date;
(ii) permit access to the information in the Collateral database by the Collateral Manager and the Borrower;
(iii) update the Collateral Database promptly for ratings changes and for Collateral Assets, Equity Securities and Eligible Investments acquired or sold or otherwise disposed of and for any amendments or changes to Collateral Asset amounts or interest rates and, if direct online viewing access to the foregoing is unavailable, report any updates as of the close of business on the preceding Business Day to the Collateral database to the Administrative Agent no later than 5:00 p.m. on each Business Day, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of cash to the Collection Account and any withdrawals therefrom (including the applicable Interest Rates provided to the Collateral Administrator by the Administrative Agent) and, if direct online viewing access to the foregoing is unavailable, report the balances of the Collection Account to the Administrative Agent no later than 5:00 p.m. on each Business Day as of the close of business on the preceding Business Day;
(v) draft and make available to the parties required under this Agreement each of the Monthly Reports which are required to be provided pursuant to Section 8.09(a) of this Agreement by the time specified in this agreement and on the basis of the information contained in the Collateral Database or as provided to the Collateral Administrator by the Borrower, Collateral Manager or Administrative Agent; and
(vi) provide the Collateral Manager with such other information as may be reasonably requested in writing by the Collateral Manager and as is within the possession of the Collateral Administrator.
(b) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) this subsection shall not be under any duty construed to give limit the Escrow Account any greater degree effect of care than it gives its own similar property and subsection (a) of this Section 15.02;
(ii) the Collateral Administrator shall not be required to invest liable for any funds held hereunder except as directed hereinerror of judgment made in good faith by a Responsible Officer of the Collateral Administrator, (ii) may act in reliance upon any instrument or signature reasonably believed by unless it to shall be genuine and may reasonably assume proven that the person purporting Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud or willful misconduct;
(iii) no provision of this Agreement shall require the Collateral Administrator to make expend or risk its own funds or otherwise incur any statement financial or execute other liability in the performance of any document of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iv) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
(c) Upon request of the Collateral Administrator, the Borrower and the Collateral Manager shall cooperate with the Collateral Administrator in connection with the provisions hereof has been duly authorized matters described herein, including calculations and information relating to do so, and (iii) may conclusively presume that (A) the representative Monthly Reports or as otherwise reasonably requested hereunder. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of Buyer executing any item of Collateral under this Agreement has full power (it being understood that any such characterization or categorization shall be based exclusively upon the determination and authority notification received by the Collateral Administrator from the Collateral Manager). To the extent the Collateral Manager becomes actually aware that the information with respect to instruct any Collateral Asset in any report, instruction or certificate required to be delivered by the Escrow Agent on behalf Collateral Administrator conflicts with information, data or calculations in the records of Buyerthe Collateral Manager, or appoint representatives the Collateral Manager shall notify the Collateral Administrator of Buyer designated on Schedule C hereto such discrepancy and use commercially reasonable efforts to instruct assist the Escrow Agent on behalf Collateral Administrator in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Collateral Manager in connection with the Collateral Manager’s review of Buyerthe contents of the aforesaid reports, unless written notice instruction and certificates and will use commercially reasonable efforts to provide such items to the contrary is delivered to Collateral Manager within a reasonably sufficient time (as agreed between the Escrow Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer Collateral Manager and the Selling Parties’ Representative respectively under this Agreement, all without further consent or direction from, or notice to, it or Collateral Administrator) prior to any other partyapplicable due date to enable such review.
Appears in 1 contract
Samples: Credit and Security Agreement (Owl Rock Technology Income Corp.)
Certain Duties and Powers. Except as otherwise expressly provided herein(a) The Collateral Administrator shall assist the Borrower and the Collateral Manager in connection with monitoring the Collateral by maintaining a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Collateral Manager (and, where applicable, the Escrow Agent Borrower’s independent public accountants) certain reports, schedules, calculations all as more particularly described in this Section 15.02 below (in each case, such reports, schedules and calculations shall be prepared in such form and content, and in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as may be required by the Agreement) based upon information and data received from the Borrower and/or the Collateral Manager, as required to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations can be prepared and delivered) under Article VIII of this Agreement. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Collateral Manager hereunder or any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreement or any other Facility Document. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) create a database with respect to the Collateral credited to the Covered Accounts within five (5) Business Days of the Closing Date;
(ii) permit access to the information in the Collateral database by the Collateral Manager and the Borrower;
(iii) update the Collateral database promptly for ratings changes and for Collateral Loans, Equity Securities and Eligible Investments acquired or sold or otherwise disposed of and for any amendments or changes to Collateral Loan amounts or interest rates (as notified to the Collateral Administrator by the Collateral Manager) and, if direct online viewing access to the foregoing is unavailable, report any updates as of the close of business on the preceding Business Day to the Collateral database to the Administrative Agent no later than 3:00 p.m. on each Business Day, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of cash to the Collection Account and any withdrawals therefrom (including the applicable Interest Rates provided to the Collateral Administrator by the Administrative Agent) and, if direct online viewing access to the foregoing is unavailable, report the balances of the Collection Account to the Administrative Agent no later than 12:00 noon on each Business Day as of the close of business on the preceding Business Day;
(v) prepare and arrange for the delivery of each Monthly Report and Payment Date Report;
(vi) on each Business Day, calculate the Borrowing Base, the Equity Coverage Requirement, the Minimum Equity Amount and the Net Equity Amount and provide such calculations to the Borrower, the Collateral Manager and the Administrative Agent;
(vii) provide the Collateral Manager with such other information as may be reasonably requested in writing by the Collateral Manager and as is within the possession of the Collateral Administrator;
(viii) track the receipt in the Data Site (or in the case of any original assignment of any Collateral Loan or any original executed promissory note with respect to any Collateral Loan, the receipt thereof by the Custodian) of the Required Loan Documents received by it with respect to each of the Collateral Loans owned by the Borrower; and
(ix) no later than the fifth (5th) Business Day following the end of each month, provide to the Administrative Agent a report with the information obligations specified for delivery by the Collateral Administrator as set forth on Schedule 4 hereto.
(b) A reasonably sufficient time prior to the date on which (i) each Monthly Report is required to be provided pursuant to Section 8.09(a) or (ii) each Payment Date Report is required to be provided pursuant to Section 8.09(b), the Collateral Administrator shall calculate, using the information contained in the Collateral database created by the Collateral Administrator pursuant to Section 15.02(a) above and any other Collateral information normally maintained by the Collateral Administrator, and subject to the Collateral Administrator’s receipt from the Collateral Manager of the information required for the preparation of the Monthly Report or the Payment Date Report, each item required to be stated in such Monthly Report or Payment Date Report in accordance with this Agreement and provide the results of such calculations to the Collateral Manager so that the Collateral Manager may confirm such results in accordance with Section 15.02(d). Upon approval by the Collateral Manager, the Collateral Administrator shall deliver the Monthly Report or Payment Date Report, as applicable, to the Borrower, the Collateral Manager, the Equityholder and the Administrative Agent in a form mutually acceptable to the Borrower, the Collateral Manager, the Equityholder, the Administrative Agent and the Collateral Administrator.
(c) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) this subsection shall not be under any duty construed to give limit the Escrow Account any greater degree effect of care than it gives its own similar property and subsection (a) of this Section 15.02;
(ii) the Collateral Administrator shall not be required to invest liable for any funds held hereunder except as directed hereinerror of judgment made in good faith by a Responsible Officer of the Collateral Administrator, (ii) may act in reliance upon any instrument or signature reasonably believed by unless it to shall be genuine and may reasonably assume proven that the person purporting Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud or willful misconduct;
(iii) no provision of this Agreement shall require the Collateral Administrator to make expend or risk its own funds or otherwise incur any statement financial or execute other liability in the performance of any document of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iv) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
(a) The Borrower and the Collateral Manager shall cooperate with the Collateral Administrator in connection with the provisions hereof has been duly authorized matters described herein, including calculations and information relating to do so, the Monthly Reports and (iii) may conclusively presume that (A) the representative Payment Date Reports or as otherwise reasonably requested hereunder. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of Buyer executing any item of Collateral under this Agreement has full power (it being understood that any such characterization or categorization shall be based exclusively upon the determination and authority notification received by the Collateral Administrator from the Collateral Manager). The Collateral Manager shall review and verify the contents of the aforesaid reports. To the extent any of the information in such reports, instructions or certificates conflicts with information, data or calculations in the records of the Collateral Manager, the Collateral Manager shall notify the Collateral Administrator of such discrepancy and use commercially reasonable efforts to instruct assist the Escrow Agent on behalf Collateral Administrator in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Collateral Manager in connection with the Collateral Manager’s review of Buyerthe contents of the aforesaid reports, or appoint representatives of Buyer designated on Schedule C hereto instruction and certificates and will use commercially reasonable efforts to instruct the Escrow Agent on behalf of Buyer, unless written notice provide such items to the contrary is delivered Collateral Manager within a reasonably sufficient time (as agreed between the Collateral Manager and the Collateral Administrator) prior to any applicable due date to enable such review. The Collateral Manager further agrees to send such reports, instructions, statements and certificates to the Escrow Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ RepresentativeBorrower for execution. The applicable persons designated on Schedule C hereto Collateral Administrator shall have full power and authority no obligation to execute and deliver determine the Borrowing Base, any Joint Instruction, Borrowing Base Value or whether any Borrowing Base Deficiency has occurred.
(b) The Collateral Administrator shall have no obligation to amend, modify determine the Asset Value or waive the price of any provision of this Escrow Agreement and to take Collateral in connection with any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively or duties under this Agreement. Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(c) The Collateral Administrator shall in no event have any liability for the actions or omissions of the Borrower, all without further consent or direction fromthe Collateral Manager, or notice tothe Administrative Agent, it the Custodian (but only if not the same Person as the Collateral Administrator) or any other partyPerson, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Collateral Manager, the Custodian (but only if not the same Person as the Collateral Administrator) or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Administrator’s own bad faith, willful misconduct, gross negligence, fraud or reckless disregard of its duties hereunder. The Collateral Administrator shall not be liable for failing to perform or any delay in performing its specified duties hereunder which results from or is caused by a failure or delay on the part of the Borrower, the Collateral Manager, the Administrative Agent, the Custodian (but only if not the same Person as the Collateral Administrator) or any other Person in furnishing necessary, timely and accurate information to the Collateral Administrator.
(d) It is expressly acknowledged by the Borrower and the Collateral Manager that application and performance by the Collateral Administrator of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data and information provided to it by the Collateral Manager (and/or the Borrower) with respect to the Collateral, and the Collateral Administrator shall have no responsibility for the accuracy of any such information or data provided to it by such Persons. Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Administrator to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any obligor under the Collateral is in default or in compliance with the underlying documents governing or securing such securities, from time to time, the role of the Collateral Administrator hereunder being solely to perform certain mathematical computations and data comparisons and to provide certain reports and other deliveries, as provided herein. For purposes of monitoring changes in ratings, the Collateral Administrator shall be entitled to use and rely (in good faith) exclusively upon one or more reputable electronic financial information reporting services, and shall have no liability for any inaccuracies in the information reported by, or other errors or omissions of, any such services.
(e) Nothing herein shall obligate the Collateral Administrator to determine independently any characteristic of a Collateral Loan, or to evaluate or verify the Collateral Manager’s characterization of any Collateral Loan, including whether any item of Collateral is a Caa/CCC Loan, Revolving Collateral Loan, Delayed Drawdown Collateral Loan, Defaulted Loan, Participation Interest, Fixed Rate Obligation, Noteless Loan, PIK Loan, Eligible Collateral Loan, Ineligible Collateral Loan, Equity Security, First Lien Loan, Second Lien Loan, Floor Obligation, Structured Finance Obligation, Certificated Security, Uncertificated Security or Covenant Lite Loan, or the domicile or any other classification of any Obligor, any such determination being based exclusively upon notification the Collateral Administrator receives from the Collateral Manager or based upon notices received from the obligor, trustee or agent bank under an underlying governing document, or similar source and nothing herein shall obligate the Collateral Administrator to review or examine any underlying instrument or contract evidencing, governing or guaranteeing or securing any Collateral Loan in order to verify, confirm, audit or otherwise determine any characteristic thereof. The Collateral Manager shall provide to the Collateral Administrator the information described in items 1(x), 1(xvi) and 1(xviii) of the Monthly Report. The Collateral Manager shall notify the Collateral Administrator of any amendment or modification of a Collateral Loan. In addition, nothing herein shall obligate the Collateral Administrator to determine the Asset Value (including the Original Asset Value) of a Collateral Loan. The Collateral Manager shall provide the Collateral Administrator with any waivers of any eligibility requirements (as set forth in the definition of Eligible Collateral Loan) by the Administrative Agent.
Appears in 1 contract
Samples: Credit and Security Agreement (Cim Real Estate Finance Trust, Inc.)
Certain Duties and Powers. Except (a) The Collateral Administrator’s duties and authority to act as otherwise expressly Collateral Administrator hereunder are limited to the duties and authority specifically provided hereinfor in this Agreement and no implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Escrow Agent Collateral Administrator. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Collateral Manager hereunder or any other Facility Document, and nothing herein contained shall be deemed to USActive 59109857.1659109857.18 release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreement or any other Facility Document. The Collateral Administrator shall perform the duties and obligations expressly set forth in this Agreement, including, without limitation, the following functions:
(i) shall not be under any duty create a database with respect to give the Escrow Account any greater degree Collateral credited to the Covered Accounts within five (5) Business Days of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed herein, the Closing Date;
(ii) may act permit access to the information in reliance upon any instrument or signature reasonably believed the Collateral database by it to be genuine the Collateral Manager and may reasonably assume that the person purporting to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so, and Borrower;
(iii) may conclusively presume that (A) update the representative Collateral database promptly for ratings changes and for Collateral Loans, Equity Securities and Eligible Investments acquired or sold or otherwise disposed of Buyer executing this Agreement has full power and authority for any amendments or changes to instruct the Escrow Agent on behalf of BuyerCollateral Loan amounts or interest rates and, or appoint representatives of Buyer designated on Schedule C hereto to instruct the Escrow Agent on behalf of Buyer, unless written notice if direct online viewing access to the contrary foregoing is delivered unavailable, report any updates as of the close of business on the preceding Business Day to the Escrow Collateral database to the Administrative Agent by Buyerno later than 3:00 p.m. on each Business Day, in each case based upon, and (B) to the representative of extent of, information furnished to the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent Collateral Administrator by or on behalf of the Selling Parties’ RepresentativeBorrower or the Collateral Manager as may be reasonably required by the Collateral Administrator, or appoint representatives by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of Selling Parties’ Representative designated on Schedule C hereto cash to instruct the Escrow Agent on behalf Collection Account and any withdrawals therefrom (including the applicable Interest Rates provided to the Collateral Administrator by the Administrative Agent) and, if direct online viewing access to the foregoing is unavailable, report the balances of the Selling Parties’ Representative, unless written notice Collection Account to the contrary is delivered Administrative Agent no later than 12:00 noon on each Business Day as of the close of business on the preceding Business Day;
(v) draft and make available to the Escrow Agent parties required under this Agreement each of the Monthly Reports and Payment Date Reports which are required to be provided pursuant to Section 8.09 of this Agreement by the Selling Parties’ Representative. The applicable persons designated time specified in this agreement and on Schedule C hereto have full power the basis of the information provided by the Borrower or the Collateral Manager to the Collateral Administrator; and
(vi) provide the Collateral Manager with such other information as may be reasonably requested in writing by the Collateral Manager and authority to execute and deliver any Joint Instruction, to amend, modify or waive any as is within the possession of the Collateral Administrator.
(b) [Reserved].
(c) No provision of this Escrow Agreement and shall be construed to take relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) this subsection shall not be construed to limit the effect of subsection (a) of this Section 15.02; USActive 59109857.1659109857.18
(ii) the Collateral Administrator shall not be liable for any and all error of judgment made in good faith by a Responsible Officer of the Collateral Administrator, unless it shall be proven that the Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud or willful misconduct;
(iii) no provision of this Agreement shall require the Collateral Administrator to expend or risk its own funds or otherwise incur any financial or other actions as liability in the representatives performance of Buyer and any of its duties hereunder, or in the Selling Parties’ Representative respectively exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iv) in no event shall the Collateral Administrator be liable for special, all without further consent punitive, indirect or direction from, consequential loss or notice to, it or damage of any other partykind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
Appears in 1 contract
Samples: Credit and Security Agreement (LGAM Private Credit LLC)
Certain Duties and Powers. Except as otherwise expressly provided herein(a) The Collateral Administrator shall assist the Borrower and the Collateral Manager in connection with monitoring the Collateral by maintaining a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Collateral Manager (and, where applicable, the Escrow Agent Borrower’s independent public accountants) certain reports, schedules, calculations all as more particularly described in this Section 15.02 below (in each case, such reports, schedules and calculations shall be prepared in such form and content, and in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as may be required by the Agreement) based upon information and data received from the Borrower and/or the Collateral Manager, as required to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations can be prepared and delivered) under Article VIII of this Agreement. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement and no implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Collateral Administrator. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Collateral Manager hereunder or any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Collateral Manager under or pursuant to this Agreement or any other Facility Document. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) create a collateral database of certain characteristics (to the extent required for the performance of its obligations hereunder, and otherwise as reasonably agreed to between the Collateral Administrator and the Collateral Manager) of the Collateral Assets and Eligible Investments credited from time to time to the Covered Accounts (the “Collateral Database”); within ten (10) Business Days of the Closing Date;
(ii) permit access to the information in the Collateral database by the Collateral Manager and the Borrower;
(iii) update the Collateral Database promptly for ratings changes and for Collateral Assets, Equity Securities and Eligible Investments acquired or sold or otherwise disposed of and for any amendments or changes to Collateral Asset amounts or interest rates (as notified to the Collateral Administrator by the Collateral Manager) and, if direct online viewing access to the foregoing is unavailable, report any updates as of the close of business on the preceding Business Day to the Collateral database to the Administrative Agent no later than 5:00 p.m. on each Business Day, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of cash to the Collection Accounts and any withdrawals therefrom (including the applicable Interest Rates provided to the Collateral Administrator by the Administrative Agent) and, if direct online viewing access to the foregoing is unavailable, report the balances of the Collection Accounts to the Administrative Agent no later than 5:00 p.m. on each Business Day as of the close of business on the preceding Business Day;
(v) prepare and make available to the parties required under this Agreement each of the Monthly Reports and Payment Date Reports which are required to be provided pursuant to Section 8.09(a) of this Agreement by the time specified in this agreement and on the basis of the information contained in the Collateral Database or as provided to the Collateral Administrator by the Borrower, Collateral Manager or Administrative Agent; and
(vi) provide the Collateral Manager with such other information as may be reasonably requested in writing by the Collateral Manager and as is within the possession of the Collateral Administrator.
(b) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) this subsection shall not be under any duty construed to give limit the Escrow Account any greater degree effect of care than it gives its own similar property and subsection (a) of this Section 15.02;
(ii) the Collateral Administrator shall not be required to invest liable for any funds held hereunder except as directed hereinerror of judgment made in good faith by a Responsible Officer of the Collateral Administrator, (ii) may act in reliance upon any instrument or signature reasonably believed by unless it to shall be genuine and may reasonably assume proven that the person purporting Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud or willful misconduct;
(iii) no provision of this Agreement shall require the Collateral Administrator to make expend or risk its own funds or otherwise incur any statement financial or execute other liability in the performance of any document of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iv) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
(c) The Borrower and the Collateral Manager shall cooperate with the Collateral Administrator in connection with the provisions hereof has been duly authorized matters described herein, including calculations and information relating to do so, the Monthly Reports and (iii) may conclusively presume that (A) Payment Date Reports or as otherwise reasonably requested hereunder. Nothing herein shall obligate the representative Collateral Administrator to determine independently the correct characterization or categorization of Buyer executing any item of Collateral under this Agreement has full power (it being understood that any such characterization or categorization shall be based exclusively upon the determination and authority notification received by the Collateral Administrator from the Collateral Manager). The Collateral Manager shall review and approve the contents of the aforesaid reports. To the extent the Collateral Manager becomes actually aware that the information with respect to instruct any Collateral Asset in any report, instruction or certificate required to be delivered by the Escrow Agent on behalf Collateral Administrator conflicts with information, data or calculations in the records of Buyerthe Collateral Manager, or appoint representatives the Collateral Manager shall notify the Collateral Administrator of Buyer designated on Schedule C hereto such discrepancy and use commercially reasonable efforts to instruct assist the Escrow Agent on behalf Collateral Administrator in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Collateral Manager in connection with the Collateral Manager’s review of Buyerthe contents of the aforesaid reports, unless written notice instruction and certificates and will use commercially reasonable efforts to provide such items to the contrary is delivered Collateral Manager within a reasonably sufficient time (as agreed between the Collateral Manager and the Collateral Administrator) prior to the Escrow Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority any applicable due date to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representativeenable such review. The applicable persons designated on Schedule C hereto Collateral Administrator shall have full power and authority no obligation to execute and deliver determine the Borrowing Base. Nothing herein shall obligate the Collateral Administrator to review or examine any Joint Instructionunderlying instrument or contract evidencing, governing or guaranteeing or securing any Collateral Asset in order to amendverify, modify confirm, audit or waive otherwise determine any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively under this Agreement, all without further consent or direction from, or notice to, it or any other partycharacteristic thereof.
Appears in 1 contract
Certain Duties and Powers. Except as otherwise expressly provided herein, (a) The Collateral Administrator shall assist the Escrow Agent (i) shall not be under any duty to give Borrower and the Escrow Account any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed herein, (ii) may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may reasonably assume that the person purporting to make any statement or execute any document Servicer in connection with monitoring the provisions hereof has been duly authorized to do so, Collateral Portfolio by maintaining a database on certain characteristics of the Collateral Portfolio on an ongoing basis and (iii) may conclusively presume that (A) the representative of Buyer executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of Buyer, or appoint representatives of Buyer designated on Schedule C hereto to instruct the Escrow Agent on behalf of Buyer, unless written notice providing to the contrary Borrower and AmericasActive:18709990.5 the Servicer (and, where applicable, the Borrower’s independent professional accountants) certain reports, schedules, calculations and other data which the Borrower is delivered required to the Escrow Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute prepare and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively under this Agreement, all without further consent as well as providing the Borrower and the Servicer reasonable cooperation in respect thereof. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or direction fromthe Servicer hereunder. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) Not later than fifteen (15) Business Days after the date hereof, the Collateral Administrator shall create a collateral database with respect to the Collateral Portfolio (the “Collateral Database”) and update the Collateral Database daily for changes, including to reflect the sale or notice toother disposition of the Collateral Portfolio, it based upon, and to the extent of, information furnished to the Collateral Administrator by the Borrower as may be reasonably required by the Collateral Administrator. The Collateral Administrator shall permit access to the information in such Collateral Database by the Servicer and the Borrower;
(ii) The Collateral Administrator 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 Servicer daily reports reflecting such actions as of the close of business on the preceding Business Day;
(iii) The Collateral Administrator shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator or as may be required by this Agreement, in each case as the Borrower, Servicer or the Administrative Agent may reasonably request from time to time;
(iv) The Collateral Administrator shall notify the Borrower, the Servicer and the Administrative Agent upon receiving notices, reports or proxies or any other partyrequests relating to corporate actions affecting the Collateral;
(v) The Collateral Administrator shall update the Collateral Database promptly for ratings changes;
(vi) The Collateral Administrator shall update the Collateral Database promptly for Loan Assets, Bonds, Equity Securities and Permitted Investments acquired or sold or otherwise disposed of by the Borrower and for any amendments or changes to the outstanding principal balance of any Loan Asset or the interest rate thereon;
(vii) The Collateral Administrator shall assist and reasonably cooperate with the independent professional accountants in the preparation of those reports required hereunder;
(viii) The Collateral Administrator shall provide a written daily report to the Administrative Agent and the Servicer of (x) all deposits to and withdrawals from the
(ix) Accounts for such Business Day and the outstanding balance as of the end of such Business Day, and (y) a report of settled trades for such Business Day; and
(x) The Collateral Administrator shall provide the Servicer with such other information as may be reasonably requested in writing by the Servicer and as is within the possession of the Collateral Administrator. AmericasActive:18709990.5
(b) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, its own willful misconduct or its own bad faith, except that:
(i) the Collateral Administrator shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Collateral Administrator, unless it shall be proven that the Collateral Administrator was grossly negligent in ascertaining the pertinent facts;
(ii) no provision of this Agreement shall require the Collateral Administrator to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iii) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Certain Duties and Powers. Except as otherwise expressly provided herein(a) The Collateral Administrator shall assist the Borrower and the Collateral Manager in connection with monitoring the Collateral by maintaining a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Collateral Manager (and, where applicable, the Escrow Agent Borrower’s independent public accountants) certain reports, schedules, calculations all as more particularly described in this Section 15.02 below (in each case, such reports, schedules and calculations shall be prepared in such form and content, and in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as may be required by the Agreement) based upon information and data received from the Borrower and/or the Collateral Manager, as required to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations can be prepared and delivered) under Article VIII of this Agreement. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Collateral Manager hereunder or any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Collateral USActive 55502425.1255502425.13 Manager under or pursuant to this Agreement or any other Facility Document. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) create a collateral database of certain characteristics (to the extent required for the performance of its obligations hereunder, and otherwise as reasonably agreed to between the Collateral Administrator and the Collateral Manager) of the Collateral Loans and Eligible Investments credited from time to time to the Covered Accounts (the “Collateral Database”); within five (5) Business Days of the Closing Date;
(ii) permit access to the information in the Collateral database by the Collateral Manager and the Borrower;
(iii) update the Collateral Database promptly for ratings changes and for Collateral Loans, Equity Securities and Eligible Investments acquired or sold or otherwise disposed of and for any amendments or changes to Collateral Loan amounts or interest rates and, if direct online viewing access to the foregoing is unavailable, report any updates as of the close of business on the preceding Business Day to the Collateral database to the Administrative Agent no later than 5:00 p.m. on each Business Day, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Collateral Manager as may be reasonably required by the Collateral Administrator, or by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of cash to the Collection Account and any withdrawals therefrom (including the applicable Interest Rates provided to the Collateral Administrator by the Administrative Agent) and, if direct online viewing access to the foregoing is unavailable, report the balances of the Collection Account to the Administrative Agent no later than 5:00 p.m. on each Business Day as of the close of business on the preceding Business Day;
(v) prepare and make available to the parties required under this Agreement each of the Monthly Reports which are required to be provided pursuant to Section 8.09(a) of this Agreement by the time specified in this agreement and on the basis of the information contained in the Collateral Database or as provided to the Collateral Administrator by the Borrower, Collateral Manager or Administrative Agent; and
(vi) provide the Collateral Manager with such other information as may be reasonably requested in writing by the Collateral Manager and as is within the possession of the Collateral Administrator.
(b) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) this subsection shall not be under any duty construed to give limit the Escrow Account any greater degree effect of care than it gives its own similar property and subsection (a) of this Section 15.02;
(ii) the Collateral Administrator shall not be required to invest liable for any funds held hereunder except as directed hereinerror of judgment made in good faith by a Responsible Officer of the Collateral Administrator, (ii) may act in reliance upon any instrument or signature reasonably believed by unless it to shall be genuine and may reasonably assume proven that the person purporting Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud or willful misconduct;
(iii) no provision of this Agreement shall require the Collateral Administrator to make expend or risk its own funds or otherwise incur any statement financial or execute other liability in the -156- USActive 55502425.1255502425.13 performance of any document of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iv) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
(c) Upon request of the Collateral Administrator, the Borrower and the Collateral Manager shall cooperate with the Collateral Administrator in connection with the provisions hereof has been duly authorized matters described herein, including calculations and information relating to do so, and (iii) may conclusively presume that (A) the representative Monthly Reports or as otherwise reasonably requested hereunder. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of Buyer executing any item of Collateral under this Agreement has full power (it being understood that any such characterization or categorization shall be based exclusively upon the determination and authority notification received by the Collateral Administrator from the Collateral Manager). To the extent the Collateral Manager becomes actually aware that the information with respect to instruct any Collateral Loan in any report, instruction or certificate required to be delivered by the Escrow Agent on behalf Collateral Administrator conflicts with information, data or calculations in the records of Buyerthe Collateral Manager, or appoint representatives the Collateral Manager shall notify the Collateral Administrator of Buyer designated on Schedule C hereto such discrepancy and use commercially reasonable efforts to instruct assist the Escrow Agent on behalf Collateral Administrator in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Collateral Manager in connection with the Collateral Manager’s review of Buyerthe contents of the aforesaid reports, unless written notice instruction and certificates and will use commercially reasonable efforts to provide such items to the contrary is delivered to Collateral Manager within a reasonably sufficient time (as agreed between the Escrow Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer Collateral Manager and the Selling Parties’ Representative respectively Collateral Administrator) prior to any applicable due date to enable such review.
(d) The Collateral Administrator shall have no obligation to determine the Asset Value or the price of any Collateral in connection with any actions or duties under this Agreement. Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(e) The Collateral Administrator shall in no event have any liability for the actions or omissions of the Borrower, all without further consent or direction fromthe Collateral Manager, or notice tothe Administrative Agent, it the Custodian (but only if not the same Person as the Collateral Administrator) or any other partyPerson, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Collateral Manager, the Custodian (but only if not the same Person as the Collateral Administrator) or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Administrator’s own willful misconduct, gross negligence or fraud. The Collateral Administrator shall not be liable for failing to perform or any delay in performing its specified duties hereunder which results from or is caused by a failure or delay on the part of the Borrower, the Collateral Manager, the Administrative Agent, the Custodian (but only if not the same Person as the Collateral Administrator) or any other Person in furnishing necessary, timely and accurate information to the Collateral Administrator.
(f) It is expressly acknowledged by the Borrower and the Collateral Manager that application and performance by the Collateral Administrator of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data and information provided to it by the Collateral Manager (and/or the Borrower) with respect to the Collateral, and the Collateral Administrator shall have -157- USActive 55502425.1255502425.13 no responsibility for the accuracy of any such information or data provided to it by such Persons. Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Administrator to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any obligor under the Collateral is in default or in compliance with the underlying documents governing or securing such securities, from time to time, the role of the Collateral Administrator hereunder being solely to perform certain mathematical computations and data comparisons and to provide certain reports and other deliveries, as provided herein. For purposes of monitoring changes in ratings, the Collateral Administrator shall be entitled to use and rely (in good faith) exclusively upon one or more reputable electronic financial information reporting services, and shall have no liability for any inaccuracies in the information reported by, or other errors or omissions of, any such services.
(g) Nothing herein shall obligate the Collateral Administrator to determine independently any characteristic of a Collateral Loan, or to evaluate or verify the Collateral Manager’s characterization of any Collateral Loan, including whether any item of Collateral is a Revolving Collateral Loan, Delayed Drawdown Collateral Loan, Fixed Rate Obligation, Noteless Loan, PIK Loan, DIP Loan, Eligible Collateral Loan, Ineligible Collateral Loan, Equity Security, Middle Market Loan, Floor Obligation, Broadly Syndicated Loan, Second Lien Loan, Structured Finance Obligation, Certificated Security, Covenant Lite Loan or Uncertificated Security, any such determination being based exclusively upon notification the Collateral Administrator receives from the Collateral Manager or from (or in its capacity as) the Collateral Agent (based upon notices received by the Collateral Agent from the obligor, trustee or agent bank under an underlying governing document, or similar source) and nothing herein shall obligate the Collateral Administrator to review or examine any underlying instrument or contract evidencing, governing or guaranteeing or securing any Collateral Loan in order to verify, confirm, audit or otherwise determine any characteristic thereof.
Appears in 1 contract
Samples: Credit and Security Agreement (Blackstone Private Credit Fund)
Certain Duties and Powers. Except as otherwise expressly provided herein(a) The Collateral Administrator shall assist the Borrower and the Servicer by maintaining a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Servicer (and, where applicable, the Escrow Agent Borrower’s independent public accountants) certain reports, schedules, calculations all as more particularly described in this Section 15.02 (in each case, such reports, schedules and calculations shall be prepared in such form and content, and in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as may be required by this Agreement) based upon information and data received from the Borrower and/or the Servicer, as required to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations can be prepared and delivered) under Article VIII of this Agreement. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement and no implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Collateral Administrator. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Servicer hereunder or any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Servicer under or pursuant to this Agreement or any other Facility Document. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) create a collateral database of certain characteristics (to the extent required for the performance of its obligations hereunder, and otherwise as reasonably agreed to between the Collateral Administrator and the Servicer) of the Collateral Loans and Eligible Investments credited from time to time to the Covered Accounts (the “Collateral Database”); within five (5) Business Days of the Closing Date;
(ii) permit access to the information in the Collateral database by the Servicer and the Borrower;
(iii) update the Collateral Database promptly for ratings changes and for Collateral Loans, Equity Securities and Eligible Investments acquired or sold or otherwise disposed of and for any amendments or changes to Collateral Loan amounts or interest rates and, if direct online viewing access to the foregoing is unavailable, report any updates as of the close of business on the preceding Business Day to the Collateral database to the Administrative Agent no later than 5:00 p.m. on each Business Day, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Servicer as may be reasonably required by the Collateral Administrator, or by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of cash to the Collection Account and any withdrawals therefrom (including the applicable Interest Rates provided to the Collateral Administrator by the Administrative Agent) and, if direct online viewing access to the foregoing is unavailable, report the balances of the Collection Account to the Administrative Agent no later than 5:00 p.m. on each Business Day as of the close of business on the preceding Business Day;
(v) deliver the Administrative Agent, on each Business Day, a cash flow, trade and position report with respect to the Collateral, in such form as shall be provided by the Collateral Administrator;
(vi) draft and make available to the parties required under this Agreement each of the Monthly Reports and Payment Date Reports which are required to be provided pursuant to Section 8.08(a) of this Agreement by the time specified in this Agreement and on the basis of the information contained in the Collateral Database or as provided to the Collateral Administrator by the Borrower, Servicer or Administrative Agent; and
(vii) provide the Servicer with such other information as may be reasonably requested in writing by the Servicer and as is within the possession of the Collateral Administrator.
(b) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) this subsection shall not be under any duty construed to give limit the Escrow Account any greater degree effect of care than it gives its own similar property and subsection (a) of this Section 15.02;
(ii) the Collateral Administrator shall not be required to invest liable for any funds held hereunder except as directed hereinerror of judgment made in good faith by a Responsible Officer of the Collateral Administrator, (ii) may act in reliance upon any instrument or signature reasonably believed by unless it to shall be genuine and may reasonably assume proven that the person purporting Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud or willful misconduct;
(iii) no provision of this Agreement shall require the Collateral Administrator to make expend or risk its own funds or otherwise incur any statement financial or execute other liability in the performance of any document of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iv) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
(c) The Borrower and the Servicer shall cooperate with the Collateral Administrator in connection with the provisions hereof has been duly authorized matters described herein, including calculations and information relating to do so, the Monthly Reports and (iii) may conclusively presume that (A) the representative Payment Date Reports or as otherwise reasonably requested hereunder. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of Buyer executing any item of Collateral under this Agreement has full power (it being understood that any such characterization or categorization shall be based exclusively upon the determination and authority notification received by the Collateral Administrator from the Servicer). The Servicer shall review and verify the contents of the contents of the Monthly Reports and the Payment Date Reports. To the extent the Servicer becomes actually aware that the information with respect to instruct any Collateral Loan in any report, instruction or certificate required to be delivered by the Escrow Agent on behalf Collateral Administrator conflicts with information, data or calculations in the records of Buyerthe Servicer, or appoint representatives the Servicer shall notify the Collateral Administrator of Buyer designated on Schedule C hereto such discrepancy and use commercially reasonable efforts to instruct assist the Escrow Agent on behalf Collateral Administrator in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Servicer in connection with the Servicer’s review of Buyerthe contents of the aforesaid reports, unless written notice instruction and certificates and will use commercially reasonable efforts to provide such items to the contrary is delivered Servicer within a reasonably sufficient time (as agreed between the Servicer and the Collateral Administrator) prior to any applicable due date to enable such review. The Servicer further agrees to send such reports, instructions, statements and certificates to the Escrow Agent by Buyer, and Borrower for execution.
(Bd) The Collateral Administrator shall have no obligation to determine the representative Asset Value or the price of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, any Collateral in connection with any actions or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively duties under this Agreement. Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(e) The Collateral Administrator shall in no event have any liability for the actions or omissions of the Borrower, all without further consent or direction fromthe Servicer, or notice tothe Administrative Agent, it the Document Custodian or any other partyPerson, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Servicer, the Document Custodian or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Administrator’s own bad faith, willful misconduct, gross negligence or fraud. The Collateral Administrator shall not be liable for failing to perform or any delay in performing its specified duties hereunder which results from or is caused by a failure or delay on the part of the Borrower, the Servicer, the Administrative Agent, the Document Custodian or any other Person in furnishing necessary, timely and accurate information to the Collateral Administrator.
(f) It is expressly acknowledged by the Borrower and the Servicer that application and performance by the Collateral Administrator of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data and information provided to it by the Servicer (and/or the Borrower) with respect to the Collateral, and the Collateral Administrator shall have no responsibility for the accuracy of any such information or data provided to it by such Persons. Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Administrator to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any obligor under the Collateral is in default or in compliance with the underlying documents governing or securing such securities, from time to time, the role of the Collateral Administrator hereunder being solely to perform certain mathematical computations and data comparisons and to provide certain reports and other deliveries, as provided herein. For purposes of monitoring changes in ratings, the Collateral Administrator shall be entitled to use and rely (in good faith) exclusively upon one or more reputable electronic financial information reporting services, and shall have no liability for any inaccuracies in the information reported by, or other errors or omissions of, any such services.
(g) Nothing herein shall obligate the Collateral Administrator to determine independently any characteristic of a Collateral Loan, or to evaluate or verify the Servicer’s characterization of any Collateral Loan, including whether any item of Collateral is a Revolving Collateral Loan, Delayed Drawdown Collateral Loan, Fixed Rate Obligation, Noteless Loan, PIK Loan, DIP Loan, Eligible Collateral Loan, Ineligible Collateral Loan, Equity Security, First Lien Last Out Loan, Floor Obligation, Second Lien Loan, Structured Finance Obligation, Certificated Security, Covenant Lite Loan or Uncertificated Security, any such determination being based exclusively upon notification the Collateral Administrator receives from the Servicer or from (or in its capacity as) the Collateral Agent (based upon notices received by the Collateral Agent from the obligor, trustee or agent bank under an underlying governing document, or similar source) and nothing herein shall obligate the Collateral Administrator to review or examine any underlying instrument or contract evidencing, governing or guaranteeing or securing any Collateral Loan in order to verify, confirm, audit or otherwise determine any characteristic thereof. In addition, the Servicer shall notify the Collateral Administrator of any amendment or modification of a Collateral Loan to the extent a Responsible Officer of the Servicer has actual knowledge of such amendment or modification.
Appears in 1 contract
Samples: Credit and Security Agreement (SLR Private Credit BDC II LLC)
Certain Duties and Powers. Except as otherwise expressly provided herein(a) The Collateral Administrator shall assist the Borrower and the Servicer in connection with monitoring the Collateral by maintaining a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Servicer (and, where applicable, the Escrow Agent Borrower's independent public accountants) certain reports, schedules, calculations all as more particularly described in this Section 13.02 below (in each case, such reports, schedules and calculations shall be prepared in such form and content, and in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as may be required by this Agreement) based upon information and data received from the Borrower and/or the Servicer, as required to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations can be prepared and delivered) under ARTICLE VI of this Agreement. The Collateral Administrator's duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement and no implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Collateral Administrator. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Servicer hereunder or any other Transaction Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Servicer under or pursuant to this Agreement or any other Transaction Document. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) as promptly as possible after the Closing Date and in any event no later than fifteen (15) days, the Collateral Administrator shall create a database (the "Collateral Database") with respect to the Loan Assets held by the Borrower on the Closing Date, which Collateral Database shall include all information reasonably requested by the Administrative Agent with respect to the Loan Assets and the Collateral, on an individual Loan Asset basis and on a portfolio basis. The Collateral Administrator shall permit access to the information in the Collateral Database by the Servicer, the Borrower and the Administrative Agent no later than the Closing Date. The Collateral Administrator shall provide a daily report to the Servicer, the Borrower and the Administrative Agent (for delivery to the Lenders), in an electronic format and in scope mutually acceptable to the Collateral Administrator, the Servicer, the Borrower and the Administrative Agent, that summarizes the material information contained in the Collateral Database, including, without limitation, the Outstanding Balance of the Collateral and balances of the Controlled Accounts. The Collateral Administrator shall update the Collateral Database promptly for Loan Assets and |US-DOCS\148390876.14|| Permitted Investments acquired or sold or otherwise disposed of and for any amendments or changes to Loan Asset amounts or interest rates;
(ii) permit access to the information in the Collateral Database by the Servicer and the Borrower;
(iii) update the Collateral Database promptly for ratings changes and for Loan Assets, Equity Securities and Permitted Investments acquired or sold or otherwise disposed of and for any amendments or changes to Loan Asset amounts or interest rates (as notified to the Collateral Administrator by the Servicer) and, if direct online viewing access to the foregoing is unavailable, report any updates as of the close of business on the preceding Business Day to the Collateral Database to the Administrative Agent no later than 5:00 p.m. on each Business Day, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Servicer as may be reasonably required by the Collateral Administrator, or by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of cash to the Interest Collection Subaccount and Principal Collection Subaccount and any withdrawals therefrom (including the applicable interest rates provided to the Collateral Administrator by the Administrative Agent) and, on each Business Day, provide to the Servicer daily reports reflecting such actions to the Interest Collection Subaccount and Principal Collection Subaccount as of the close of business on the preceding Business Day; provided that if direct online viewing access to the foregoing is unavailable, report the balances of the Collection Account to the Administrative Agent no later than 5:00 p.m. on each Business Day as of the close of business on the preceding Business Day, and shall further provide to the Servicer a statement as to the amount of Interest Collections and Principal Collections on deposit in the Interest Collection Subaccount and the Principal Collection Subaccount no later than three (3) Business Days prior to each Determination Date for inclusion in the Servicing Report delivered pursuant to Section 6.08(b);
(v) in connection with each Payment Date, the Collateral Administrator shall prepare and arrange for the delivery of each item to be included in the Servicing Report pursuant to Section 6.08(b)(v) not later than the day that is two (2) Business Days prior to the applicable Payment Date to the Borrower and the Servicer (and, following the delivery of a Notice of Exclusive Control, the Administrative Agent and the Servicer) for the Servicer's (or Administrative Agent's, as applicable) review. The parties acknowledge that the Collateral Administrator shall not be responsible for determining the Yield with respect to any Advance, which shall be solely provided by the Administrative Agent;
(vi) calculate amounts to be remitted pursuant to Section 2.04 to the applicable parties and notify the Servicer and the Administrative Agent;
(vii) provide the Borrower, the Servicer and the Administrative Agent a copy of all notices, reports or proxies or any other requests or communications |US-DOCS\148390876.14|| identified as being sent to it in connection with the Loan Assets and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Administrator be under any duty or obligation to give take any action on behalf of the Escrow Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Servicer, prior to the occurrence of an Event of Default, or the Administrative Agent, after the occurrence of Event of Default, in which event the Collateral Administrator shall vote, consent or take such other action in accordance with such instructions;
(viii) on each Business Day, provide the cash flow and position report of the Borrower to the Administrative Agent;
(ix) provide the Servicer with such other information as may be reasonably requested in writing by the Servicer and as is within the possession of the Collateral Administrator; and
(x) no later than the fifth (5th) Business Day following the end of each month, provide to the Administrative Agent an itemized list and brief description of all amounts withdrawn from the Collection Account any greater degree during the applicable month.
(b) No provision of care than it gives this Agreement shall be construed to relieve the Collateral Administrator from liability for its own similar property and grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) the Collateral Administrator shall not be required to invest liable for any funds held hereunder except as directed hereinerror of judgment made in good faith by a Responsible Officer of the Collateral Administrator, unless it shall be proven that the Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud or willful misconduct;
(ii) may act no provision of this Agreement shall require the Collateral Administrator to expend or risk its own funds or otherwise incur any financial or other liability in reliance upon the performance of any instrument of its duties hereunder, or signature in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably believed by assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iii) in no event shall the Collateral Administrator be genuine liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and may reasonably assume that regardless of the person purporting to make any statement or execute any document form of such action.
(c) The Borrower and the Servicer shall cooperate with the Collateral Administrator in connection with the provisions hereof has been duly authorized matters described herein, including calculations and information relating to do so, and (iii) may conclusively presume that (A) the representative Servicing Reports or as otherwise reasonably requested hereunder. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of Buyer executing any item of Collateral under this Agreement has full power (it being |US-DOCS\148390876.14|| understood that any such characterization or categorization shall be based exclusively upon the determination and authority to instruct notification received by the Escrow Agent on behalf of Buyer, or appoint representatives of Buyer designated on Schedule C hereto to instruct Collateral Administrator from the Escrow Agent on behalf of Buyer, unless written notice to the contrary is delivered to the Escrow Agent by Buyer, and Servicer). The Servicer (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ RepresentativeBorrower) shall review and verify the contents of the aforesaid reports. To the extent any of the information in such reports, instructions or appoint representatives certificates conflicts with information, data or calculations in the records of Selling Parties’ Representative designated on Schedule C hereto the Servicer, the Servicer shall notify the Collateral Administrator of such discrepancy and use commercially reasonable efforts to instruct assist the Escrow Agent Collateral Administrator in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Servicer in connection with the Servicer's review of the contents of the aforesaid reports, instruction and certificates and will use commercially reasonable efforts to provide such items to the Servicer within a reasonably sufficient time (as agreed between the Servicer (on behalf of the Selling Parties’ RepresentativeBorrower) and the Collateral Administrator) prior to any applicable due date to enable such review. The Servicer further agrees to send such reports, unless written notice instructions, statements and certificates to the contrary is delivered to the Escrow Agent by the Selling Parties’ RepresentativeBorrower for execution. The applicable persons designated on Schedule C hereto Collateral Administrator shall have full power and authority no obligation to execute and deliver determine the Borrowing Base, any Joint Instruction, Borrowing Base Value or whether any Borrowing Base Deficiency has occurred.
(d) The Collateral Administrator shall have no obligation to amend, modify determine the market value or waive the price of any provision of this Escrow Agreement and to take Collateral in connection with any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively or duties under this Agreement. Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(e) The Collateral Administrator shall in no event have any liability for the actions or omissions of the Borrower, all without further consent or direction fromthe Servicer, or notice tothe Administrative Agent, it the Collateral Custodian or any other partyPerson, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Servicer, the Collateral Custodian or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Administrator's own bad faith, willful misconduct, gross negligence, fraud or reckless disregard of its duties hereunder. The Collateral Administrator shall not be liable for failing to perform or any delay in performing its specified duties hereunder which results from or is caused by a failure or delay on the part of the Borrower, the Servicer, the Administrative Agent, the Collateral Custodian or any other Person in furnishing necessary, timely and accurate information to the Collateral Administrator.
(f) It is expressly acknowledged by the Borrower and the Servicer that application and performance by the Collateral Administrator of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data and information provided to it by the Servicer (and/or the Borrower) with respect to the Collateral, and the Collateral Administrator shall have no responsibility for the accuracy of any such information or data provided to it by such Persons. Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Administrator to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any obligor under the Collateral is in default or in compliance with the underlying documents governing or securing such securities, from time to time, the role of the Collateral Administrator hereunder being solely to perform certain mathematical computations and data comparisons and to provide certain reports and other deliveries, as provided herein. For purposes of monitoring changes in ratings, the Collateral |US-DOCS\148390876.14|| Administrator shall be entitled to use and rely (in good faith) exclusively upon one or more reputable electronic financial information reporting services, and shall have no liability for any inaccuracies in the information reported by, or other errors or omissions of, any such services.
(g) Nothing herein shall obligate the Collateral Administrator to determine independently any characteristic of a Loan Asset, or to evaluate or verify the Servicer's characterization of any Loan Asset, including whether any item of Collateral is a Revolving Loan, Delayed Draw Loan Asset, fixed rate Loan Asset, Noteless Loan, DIP Loan, Eligible Loan Asset, Equity Security, First Lien Loan, FLLO Loan, Second Lien Loan, Structured Finance Obligation or Cov-Lite Loan Asset, any such determination being based exclusively upon notification the Collateral Administrator receives from the Servicer or from (or in its capacity as) the Collateral Agent (based upon notices received by the Collateral Agent from the obligor, trustee or agent bank under an underlying governing document, or similar source) and nothing herein shall obligate the Collateral Administrator to review or examine any underlying instrument or contract evidencing, governing or guaranteeing or securing any Loan Asset in order to verify, confirm, audit or otherwise determine any characteristic thereof. In addition, the Servicer shall notify the Collateral Administrator of any amendment or modification of a Loan Asset to the extent a Responsible Officer of the Servicer has actual knowledge of such amendment or modification.
Appears in 1 contract
Certain Duties and Powers. Except as otherwise expressly provided herein(a) The Collateral Administrator shall assist the Borrower and the Servicer in connection with monitoring the Collateral by maintaining a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Servicer (and, where applicable, the Escrow Agent Borrower’s independent public accountants) certain reports, schedules, calculations all as more particularly described in this Section 13.02 below (in each case, such reports, schedules and calculations shall be prepared in such form and content, and in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as may be required by this Agreement) based upon information and data received from the Borrower and/or the Servicer, as required to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations can be prepared and delivered) under Article VI of this Agreement. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement and no implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Collateral Administrator. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Servicer hereunder or any other Transaction Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise alter in any respect the duties, obligations or Liabilities of the Borrower or the Servicer under or pursuant to this Agreement or any other Transaction Document. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) as promptly as possible after the Closing Date and in any event no later than fifteen (15) days, the Collateral Administrator shall create a database (the “Collateral Database”) with respect to the Loan Assets held by the Borrower on the Closing Date, which Collateral Database shall include all information reasonably requested by the Administrative Agent with respect to the Loan Assets and the Collateral, on an individual Loan Asset basis and on a portfolio basis. The Collateral Administrator shall permit access to the information in the Collateral Database by the Servicer, the Borrower and the Administrative Agent no later than the Closing Date. The Collateral Administrator shall provide a daily report to the Servicer, the Borrower and the Administrative Agent (for delivery to the Lenders), in an electronic format and in scope mutually acceptable to the Collateral Administrator, the Servicer, the Borrower and the Administrative Agent, that summarizes the material information contained in the Collateral Database, including, without limitation, the Outstanding Balance of the Collateral and balances of the Controlled Accounts. The Collateral Administrator shall update the Collateral Database promptly for Loan Assets and Permitted Investments acquired or sold or otherwise disposed of and for any amendments or changes to Loan Asset amounts or interest rates;
(ii) permit access to the information in the Collateral Database by the Servicer and the Borrower;
(iii) update the Collateral Database promptly for ratings changes and for Loan Assets, Equity Securities and Permitted Investments acquired or sold or otherwise disposed of and for any amendments or changes to Loan Asset amounts or interest rates (as notified to the Collateral Administrator by the Servicer) and, if direct online viewing access to the foregoing is unavailable, report any updates as of the close of business on the preceding Business Day to the Collateral Database to the Administrative Agent no later than 5:00 p.m. on each Business Day, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Servicer as may be reasonably required by the Collateral Administrator, or by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of cash to the Interest Collection Subaccount and Principal Collection Subaccount and any withdrawals therefrom (including the applicable interest rates provided to the Collateral Administrator by the Administrative Agent) and, on each Business Day, provide to the Servicer daily reports reflecting such actions to the Interest Collection Subaccount and Principal Collection Subaccount as of the close of business on the preceding Business Day; provided that if direct online viewing access to the foregoing is unavailable, report the balances of the Collection Account to the Administrative Agent no later than 5:00 p.m. on each Business Day as of the close of business on the preceding Business Day, and shall further provide to the Servicer a statement as to the amount of Interest Collections and Principal Collections on deposit in the Interest Collection Subaccount and the Principal Collection Subaccount no later than three (3) Business Days prior to each Determination Date for inclusion in the Servicing Report delivered pursuant to Section 6.08(b).
(v) in connection with each Payment Date, the Collateral Administrator shall prepare and arrange for the delivery of each item to be included in the Servicing Report pursuant to Section 6.08(b)(vi) not later than the day that is two (2) Business Days prior to the applicable Payment Date to the Borrower and the Servicer (and, following the delivery of a Notice of Exclusive Control, the Administrative Agent and the Servicer) for the Servicer’s (or Administrative Agent’s, as applicable) review. The parties acknowledge that the Collateral Administrator shall not be responsible for determining the Yield with respect to any Advance, which shall be solely provided by the Administrative Agent;
(vi) calculate amounts to be remitted pursuant to Section 2.04 to the applicable parties and notify the Servicer and the Administrative Agent in the event of any discrepancy between the Collateral Agent’s calculations and the Servicing Report (such dispute to be resolved in accordance with Section 2.05);
(vii) provide the Borrower, the Servicer and the Administrative Agent a copy of all notices, reports or proxies or any other requests or communications identified as being sent to it in connection with the Loan Assets and the other Collateral held hereunder which it receives from the related Obligor, participating bank and/or agent bank. In no instance shall the Collateral Administrator be under any duty or obligation to give take any action on behalf of the Escrow Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Servicer, prior to the occurrence of an Event of Default, or the Administrative Agent, after the occurrence of Event of Default, in which event the Collateral Administrator shall vote, consent or take such other action in accordance with such instructions;
(viii) on each Business Day, provide the cash flow and position report of the Borrower to the Administrative Agent;
(ix) provide the Servicer with such other information as may be reasonably requested in writing by the Servicer and as is within the possession of the Collateral Administrator; and
(x) no later than the fifth (5th) Business Day following the end of each month, provide to the Administrative Agent an itemized list and brief description of all amounts withdrawn from the Collection Account any greater degree during the applicable month.
(b) No provision of care than it gives this Agreement shall be construed to relieve the Collateral Administrator from liability for its own similar property and grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct or fraud, except that:
(i) the Collateral Administrator shall not be required to invest liable for any funds held hereunder except as directed hereinerror of judgment made in good faith by a Responsible Officer of the Collateral Administrator, unless it shall be proven that the Collateral Administrator was grossly negligent in ascertaining the pertinent facts or engaged in fraud or willful misconduct;
(ii) may act no provision of this Agreement shall require the Collateral Administrator to expend or risk its own funds or otherwise incur any financial or other liability in reliance upon the performance of any instrument of its duties hereunder, or signature in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably believed by assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iii) in no event shall the Collateral Administrator be genuine liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and may reasonably assume that regardless of the person purporting to make any statement or execute any document form of such action
(c) The Borrower and the Servicer shall cooperate with the Collateral Administrator in connection with the provisions hereof has been duly authorized matters described herein, including calculations and information relating to do so, and (iii) may conclusively presume that (A) the representative Servicing Reports or as otherwise reasonably requested hereunder. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of Buyer executing any item of Collateral under this Agreement has full power (it being understood that any such characterization or categorization shall be based exclusively upon the determination and authority to instruct notification received by the Escrow Agent on behalf of Buyer, or appoint representatives of Buyer designated on Schedule C hereto to instruct Collateral Administrator from the Escrow Agent on behalf of Buyer, unless written notice to the contrary is delivered to the Escrow Agent by Buyer, and Servicer). The Servicer (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ RepresentativeBorrower) shall review and verify the contents of the aforesaid reports. To the extent any of the information in such reports, instructions or appoint representatives certificates conflicts with information, data or calculations in the records of Selling Parties’ Representative designated on Schedule C hereto the Servicer, the Servicer shall notify the Collateral Administrator of such discrepancy and use commercially reasonable efforts to instruct assist the Escrow Agent Collateral Administrator in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Servicer in connection with the Servicer’s review of the contents of the aforesaid reports, instruction and certificates and will use commercially reasonable efforts to provide such items to the Servicer within a reasonably sufficient time (as agreed between the Servicer (on behalf of the Selling Parties’ RepresentativeBorrower) and the Collateral Administrator) prior to any applicable due date to enable such review. The Servicer further agrees to send such reports, unless written notice instructions, statements and certificates to the contrary is delivered to the Escrow Agent by the Selling Parties’ RepresentativeBorrower for execution. The applicable persons designated on Schedule C hereto Collateral Administrator shall have full power and authority no obligation to execute and deliver determine the Borrowing Base, any Joint Instruction, Borrowing Base Value or whether any Borrowing Base Deficiency has occurred.
(d) The Collateral Administrator shall have no obligation to amend, modify determine the market value or waive the price of any provision of this Escrow Agreement and to take Collateral in connection with any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively or duties under this Agreement. Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(e) The Collateral Administrator shall in no event have any liability for the actions or omissions of the Borrower, all without further consent or direction fromthe Servicer, or notice tothe Administrative Agent, it the Collateral Custodian or any other partyPerson, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Servicer, the Collateral Custodian or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Administrator’s own bad faith, willful misconduct, gross negligence, fraud or reckless disregard of its duties hereunder. The Collateral Administrator shall not be liable for failing to perform or any delay in performing its specified duties hereunder which results from or is caused by a failure or delay on the part of the Borrower, the Servicer, the Administrative Agent, the Collateral Custodian or any other Person in furnishing necessary, timely and accurate information to the Collateral Administrator.
(f) It is expressly acknowledged by the Borrower and the Servicer that application and performance by the Collateral Administrator of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data and information provided to it by the Servicer (and/or the Borrower) with respect to the Collateral, and the Collateral Administrator shall have no responsibility for the accuracy of any such information or data provided to it by such Persons. Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Administrator to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any obligor under the Collateral is in default or in compliance with the underlying documents governing or securing such securities, from time to time, the role of the Collateral Administrator hereunder being solely to perform certain mathematical computations and data comparisons and to provide certain reports and other deliveries, as provided herein. For purposes of monitoring changes in ratings, the Collateral Administrator shall be entitled to use and rely (in good faith) exclusively upon one or more reputable electronic financial information reporting services, and shall have no liability for any inaccuracies in the information reported by, or other errors or omissions of, any such services.
(g) Nothing herein shall obligate the Collateral Administrator to determine independently any characteristic of a Loan Asset, or to evaluate or verify the Servicer’s characterization of any Loan Asset, including whether any item of Collateral is a Revolving Loan, Delayed Draw Loan Asset, fixed rate Loan Asset, Noteless Loan, DIP Loan, Eligible Loan Asset, Equity Security, First Lien Loan, FLLO Loan, Second Lien Loan, Structured Finance Obligation, Certificated Security, Cov-Lite Loan Asset or Uncertificated Security, any such determination being based exclusively upon notification the Collateral Administrator receives from the Servicer or from (or in its capacity as) the Collateral Agent (based upon notices received by the Collateral Agent from the obligor, trustee or agent bank under an underlying governing document, or similar source) and nothing herein shall obligate the Collateral Administrator to review or examine any underlying instrument or contract evidencing, governing or guaranteeing or securing any Loan Asset in order to verify, confirm, audit or otherwise determine any characteristic thereof. In addition, the Servicer shall notify the Collateral Administrator of any amendment or modification of a Loan Asset to the extent a Responsible Officer of the Servicer has actual knowledge of such amendment or modification.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Certain Duties and Powers. Except (a) The Collateral Administrator shall assist the Borrower and the Servicer in connection with monitoring the Collateral by maintaining a database on certain characteristics of the Collateral on an ongoing basis and providing to the Borrower and the Servicer certain reports, schedules, calculations all as more particularly described in this Section 15.02 below (in each case, such reports, schedules and calculations shall be prepared in such form and content, and in such greater detail, as may be mutually agreed upon by the parties hereto from time to time and as may be required by the Agreement) based upon information and data received from the Borrower and/or the Servicer, as required to be prepared and delivered (or which are necessary to be prepared and delivered in order that certain other reports, schedules and calculations can be prepared and delivered) under Article VIII of this Agreement. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or the Servicer hereunder or any other Facility Document, and nothing herein contained shall be deemed to release, terminate, discharge, limit, reduce, diminish, modify, amend or otherwise expressly provided hereinalter in any respect the duties, obligations or Liabilities of the Borrower or the Servicer under or pursuant to this Agreement or any other Facility Document. Without limiting the foregoing, the Escrow Agent Collateral Administrator shall perform the following functions:
(i) create a database with respect to the Collateral credited to the Covered Accounts within five (5) Business Days of the Closing Date;
(ii) permit access to the information in the Collateral database by the Servicer and the Borrower;
(iii) update the Collateral database promptly for ratings changes, changes in Asset Values (to the extent determined in accordance with clause (a) of the definition thereof and for Collateral Loans, Equity Securities and Eligible Investments acquired or sold or otherwise disposed of and for any amendments or changes to Collateral Loan amounts or interest rates and, if direct online viewing access to the foregoing is unavailable, report any updates as of the close of business on the preceding Business Day to the Collateral database to the Administrative Agent no later than 3:00 p.m. (New York time) on each Business Day, in each case based upon, and to the extent of, information furnished to the Collateral Administrator by or on behalf of the Borrower or the Servicer as may be reasonably required by the Collateral Administrator, or by the agents for the obligors from time to time;
(iv) track the receipt and daily allocation of cash to the Interest Collection Account and Principal Collection Account and any withdrawals therefrom and, if direct online viewing access to the foregoing is unavailable, report the balances of the Interest Collection Account and Principal Collection Account to the Administrative Agent no later than 12:00 noon on each Business Day as of the close of business on the preceding Business Day;
(v) prepare and arrange for the delivery of each Monthly Report, Borrowing Base Calculation Statement and Payment Date Report; and
(vi) provide the Servicer with such other information as may be reasonably requested in writing by the Servicer and as is within the possession of the Collateral Administrator.
(b) A reasonably sufficient time prior to the date on which (i) each Monthly Report is required to be provided pursuant to Section 8.09(a) or (ii) each Payment Date Report is required to be provided pursuant to Section 8.09(b), the Collateral Administrator shall calculate, using the information contained in the Collateral database created by the Collateral Administrator pursuant to Section 15.02(a) above and any other Collateral information normally maintained by the Collateral Administrator, and subject to the Collateral Administrator’s receipt from the Servicer of the information required for the preparation of the Monthly Report or the Payment Date Report, each item required to be stated in such Monthly Report or Payment Date Report in accordance with this Agreement and provide the results of such calculations to the Servicer so that the Servicer may confirm such results in accordance with Section 15.02(d). Upon approval by the Servicer, the Collateral Administrator shall deliver the Monthly Report or Payment Date Report, as applicable, to the Borrower, the Servicer, the Equityholder and the Administrative Agent in a form mutually acceptable to the Borrower, the Servicer, the Equityholder, the Administrative Agent and the Collateral Administrator.
(c) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be under any duty construed to give limit the Escrow Account any greater degree effect of care than it gives its own similar property and subsection (a) of this Section 15.02;
(ii) the Collateral Administrator shall not be required to invest liable for any funds held hereunder except as directed hereinerror of judgment made in good faith by a Responsible Officer of the Collateral Administrator, (ii) may act in reliance upon any instrument or signature reasonably believed by unless it to shall be genuine and may reasonably assume proven that the person purporting Collateral Administrator was grossly negligent in ascertaining the pertinent facts;
(iii) no provision of this Agreement shall require the Collateral Administrator to make expend or risk its own funds or otherwise incur any statement financial or execute other liability in the performance of any document of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iv) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
(d) The Borrower and the Servicer shall cooperate with the Collateral Administrator in connection with the provisions hereof has been duly authorized matters described herein, including calculations and information relating to do so, the Monthly Reports and (iii) may conclusively presume that (A) the representative Payment Date Reports or as otherwise reasonably requested hereunder. Nothing herein shall obligate the Collateral Administrator to determine independently the correct characterization or categorization of Buyer executing any item of Collateral under this Agreement has full power (it being understood that any such characterization or categorization shall be based exclusively upon the determination and authority notification received by the Collateral Administrator from the Servicer). The Servicer shall review and verify the contents of the aforesaid reports. To the extent any of the information in such reports, instructions or certificates conflicts with information, data or calculations in the records of the Servicer, the Servicer shall notify the Collateral Administrator of such discrepancy and use commercially reasonable efforts to instruct assist the Escrow Agent on behalf Collateral Administrator in reconciling such discrepancy. The Collateral Administrator shall cooperate with the Servicer in connection with the Servicer’s review of Buyerthe contents of the aforesaid reports, or appoint representatives of Buyer designated on Schedule C hereto instruction and certificates and will use commercially reasonable efforts to instruct provide such items to the Escrow Agent on behalf of BuyerServicer within a reasonably sufficient time (as agreed between the Servicer and the Collateral Administrator) prior to any applicable due date to enable such review. The Servicer further agrees to send such reports, unless written instructions, statements and certificates to the Borrower for execution. In addition, the Servicer shall provide prompt notice to the contrary is delivered Collateral Administrator upon the Servicer’s obtaining knowledge of a Collateral Loan becoming a Defaulted Collateral Loan.
(e) The Collateral Administrator shall have no obligation to determine the Escrow Agent by Buyer, and price of any Collateral in connection with any actions or duties under this Agreement (Bexcept as provided in Section 15.02). Nothing herein shall prevent the Collateral Administrator or any of its Affiliates from engaging in other businesses or from rendering services of any kind to any Person.
(f) The Collateral Administrator shall in no event have any liability for the representative actions or omissions of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct Borrower, the Escrow Agent on behalf of Servicer, the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct Custodian (but only if not the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions same Person as the representatives of Buyer and the Selling Parties’ Representative respectively under this Agreement, all without further consent or direction from, or notice to, it Collateral Administrator) or any other partyPerson, and shall have no liability for any inaccuracy or error in any duty performed by it that results from or is caused by inaccurate, untimely or incomplete information or data received by it from the Borrower, the Servicer, the Custodian (but only if not the same Person as the Collateral Administrator) or another Person except to the extent that such inaccuracies or errors are caused by the Collateral Administrator’s own willful misconduct or gross negligence. The Collateral Administrator shall not be liable for failing to perform or any delay in performing its specified duties hereunder which results from or is caused by a failure or delay on the part of the Borrower, the Servicer, the Custodian (but only if not the same Person as the Collateral Administrator) or any other Person in furnishing necessary, timely and accurate information to the Collateral Administrator.
(g) It is expressly acknowledged by the Borrower and the Servicer that application and performance by the Collateral Administrator of its various duties hereunder (including recalculations to be performed in respect of the matters contemplated hereby) shall be based upon, and in reliance upon, data and information provided to it by the Servicer (and/or the Borrower) with respect to the Collateral, and the Collateral Administrator shall have no responsibility for the accuracy of any such information or data provided to it by such Persons. Nothing herein shall impose or imply any duty or obligation on the part of the Collateral Administrator to verify, investigate or audit any such information or data, or to determine or monitor on an independent basis whether any obligor under the Collateral is in default or in compliance with the underlying documents governing or securing such securities, from time to time, the role of the Collateral Administrator hereunder being solely to perform certain mathematical computations and data comparisons and to provide certain reports and other deliveries, as provided herein. For purposes of monitoring changes in ratings, the Collateral Administrator shall be entitled to use and rely (in good faith) exclusively upon one or more reputable electronic financial information reporting services, and shall have no liability for any inaccuracies in the information reported by, or other errors or omissions of, any such services.
(h) Nothing herein shall obligate the Collateral Administrator to determine independently any characteristic of a Collateral Loan, or to evaluate or verify the Servicer’s characterization of any Collateral Loan, including whether any item of Collateral is a as a Broadly Syndicated Loan, Bid Depth, Caa/CCC Loan, Covenant Lite Loan, Current Pay Loan, Revolving Collateral Loan, Delayed Drawdown Collateral Loan, Defaulted Collateral Loan, DIP Collateral Loan, Fixed Rate Obligation, Noteless Loan, PIK Loan, Participation Interest, Credit Risk Collateral Loan, Eligible Loan, Ineligible Collateral Loan, Equity Security, First Lien Loan, Second Lien Loan, Floor Obligation, Standard First Lien Loan, Standard Second Lien Loan, Structured Finance Obligation, Certificated Security, Uncertificated Security or Zero Coupon Obligation, any such determination being based exclusively upon notification the Collateral Administrator receives from the Servicer or from (or in its capacity as) the Collateral Agent (based upon notices received by the Collateral Agent from the obligor, trustee or agent bank under an underlying governing document, or similar source) and nothing herein shall obligate the Collateral Administrator to review or examine any underlying instrument or contract evidencing, governing or guaranteeing or securing any Collateral Loan in order to verify, confirm, audit or otherwise determine any characteristic thereof.
(i) The Collateral Administrator shall have no (i) responsibility or liability for the selection or determination of any alternative base rate as a successor or replacement base rate to the LIBOR Rate and shall be entitled to rely upon any designation of such a rate by the Administrative Agent or (ii) liability for any failure or delay in performing its duties hereunder as a result of the unavailability of a “LIBOR Rate” as described in the definition thereof.
Appears in 1 contract
Samples: Credit and Security Agreement (Bain Capital Specialty Finance, Inc.)
Certain Duties and Powers. Except as otherwise expressly provided herein, (a) The Collateral Administrator shall assist the Escrow Agent (i) shall not be under any duty to give Borrower and the Escrow Account any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed herein, (ii) may act in reliance upon any instrument or signature reasonably believed by it to be genuine and may reasonably assume that the person purporting to make any statement or execute any document Servicer in connection with monitoring the provisions hereof has been duly authorized to do so, Collateral Portfolio by maintaining a database on certain characteristics of the Collateral Portfolio on an ongoing basis and (iii) may conclusively presume that (A) the representative of Buyer executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of Buyer, or appoint representatives of Buyer designated on Schedule C hereto to instruct the Escrow Agent on behalf of Buyer, unless written notice providing to the contrary Borrower and the Servicer (and, where applicable, the Borrower’s independent professional accountants) certain reports, schedules, calculations and other data which the Borrower is delivered required to the Escrow Agent by Buyer, and (B) the representative of the Selling Parties’ Representative executing this Agreement has full power and authority to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, or appoint representatives of Selling Parties’ Representative designated on Schedule C hereto to instruct the Escrow Agent on behalf of the Selling Parties’ Representative, unless written notice to the contrary is delivered to the Escrow Agent by the Selling Parties’ Representative. The applicable persons designated on Schedule C hereto have full power and authority to execute prepare and deliver any Joint Instruction, to amend, modify or waive any provision of this Escrow Agreement and to take any and all other actions as the representatives of Buyer and the Selling Parties’ Representative respectively under this Agreement, all without further consent as well as providing the Borrower and the Servicer reasonable cooperation in respect thereof. The Collateral Administrator’s duties and authority to act as Collateral Administrator hereunder are limited to the duties and authority specifically provided for in this Agreement. The Collateral Administrator shall not be deemed to assume the obligations of the Borrower or direction fromthe Servicer hereunder. Without limiting the foregoing, the Collateral Administrator shall perform the following functions:
(i) Not later than fifteen (15) Business Days after the date hereof, the Collateral Administrator shall create a collateral database with respect to the Collateral Portfolio (the “Collateral Database”) and update the Collateral Database daily for changes, including to reflect the sale or notice toother disposition of the Collateral Portfolio, it based upon, and to the extent of, information furnished to the Collateral Administrator by the Borrower as may be reasonably required by the Collateral Administrator. The Collateral Administrator shall permit access to the information in such Collateral Database by the Servicer and the Borrower;
(ii) The Collateral Administrator 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 Servicer daily reports reflecting such actions as of the close of business on the preceding Business Day;
(iii) The Collateral Administrator shall provide such other information with respect to the Collateral as may be routinely maintained by the Collateral Administrator or as may be required by this Agreement, in each case as the Borrower, Servicer or the Administrative Agent may reasonably request from time to time;
(iv) The Collateral Administrator shall notify the Borrower, the Servicer and the Administrative Agent upon receiving notices, reports or proxies or any other partyrequests relating to corporate actions affecting the Collateral;
(v) The Collateral Administrator shall update the Collateral Database promptly for ratings changes; AmericasActive:18709990.5
(vi) The Collateral Administrator shall update the Collateral Database promptly for Loan Assets, Bonds, Equity Securities and Permitted Investments acquired or sold or otherwise disposed of by the Borrower and for any amendments or changes to the outstanding principal balance of any Loan Asset or the interest rate thereon;
(vii) The Collateral Administrator shall assist and reasonably cooperate with the independent professional accountants in the preparation of those reports required hereunder;
(viii) The Collateral Administrator shall provide a written daily report to the Administrative Agent and the Servicer of (x) all deposits to and withdrawals from the
(ix) Accounts for such Business Day and the outstanding balance as of the end of such Business Day, and (y) a report of settled trades for such Business Day; and
(x) The Collateral Administrator shall provide the Servicer with such other information as may be reasonably requested in writing by the Servicer and as is within the possession of the Collateral Administrator.
(b) No provision of this Agreement shall be construed to relieve the Collateral Administrator from liability for its own grossly negligent action, its own grossly negligent failure to act, its own willful misconduct or its own bad faith, except that:
(i) the Collateral Administrator shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Collateral Administrator, unless it shall be proven that the Collateral Administrator was grossly negligent in ascertaining the pertinent facts;
(ii) no provision of this Agreement shall require the Collateral Administrator to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to the performance of its ordinary services under this Agreement; and
(iii) in no event shall the Collateral Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Collateral Administrator has been advised of the likelihood of such damages and regardless of the form of such action.
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Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
